A5768

An Act concerning the confinement of transgender inmates in State correctional facilities and supplementing Title 30 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. a. During initial classification, Department of Corrections staff shall ask each inmate:

(1) to identify the inmate’s gender identity or expression as male, female, or non-binary;

(2) whether the inmate identifies as transgender, non-binary, or intersex; and

(3) the individual’s preferred gender pronoun.

An inmate who refuses to answer these questions shall not be disciplined.

b. Each inmate shall be assigned to a State correctional facility based on the inmate’s gender identity or expression, regardless of the gender that the individual was assigned at birth or the inmate’s anatomical characteristics. An inmate who is non-binary shall be assigned to a facility based on the inmate’s stated preference.

c. An inmate may, at any time, inform a Department of Corrections staff member of the inmate’s gender identity or expression and preferred gender pronoun. The Department of Corrections staff member shall follow procedures to be established by the Commissioner of Corrections for ensuring that the inmate is assigned, or reassigned if necessary, to a State correctional facility in accordance with subsection b. of this section.

As used in this section:

“Gender expression” means a person’s gender-related appearance and behavior.

“Gender identity” means a person’s internal, deeply held knowledge of their own gender, regardless of the gender the person was assigned at birth.

“Intersex” means a person whose biological sex characteristics may not fit within the medical definitions of male and female and may include, but shall not be limited to, internal reproductive organs, external genitalia, and sex chromosomes.

“Non-binary” refers to a person whose gender is not exclusively male or female and may include those with more than one gender or with no gender.

“Transgender” refers to a person whose gender identity or gender expression differs from societal expectations associated with the gender the person was assigned at birth.

2. Department of Corrections staff members, volunteers, and contractors shall refer to an inmate using the inmate’s preferred gender pronoun. A staff member, volunteer, or contractor who consistently fails to use the inmate’s preferred gender pronoun shall be subject to discipline in accordance with relevant rules and regulations established pursuant to section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill).

3. The Commissioner of Corrections, in consultation with the Commissioner of Human Services, shall promulgate rules and regulations, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), necessary to effectuate the purposes of this act.

4. This act shall take effect immediately.

STATEMENT

This bill requires the Department of Corrections (DOC) to assign transgender inmates to a State correctional facility based on the inmate’s gender identity or expression and refer to an inmate using the inmate’s preferred gender pronoun.

This bill requires DOC staff, during initial classification, to ask each inmate: to identify the inmate’s gender identity or expression as male, female, or non-binary; whether the inmate identifies as transgender, non-binary, or intersex; and the individual’s preferred gender pronoun. An inmate who refuses to answer these questions is not to be disciplined. This bill requires DOC staff members, volunteers, and contractors to refer to an inmate using the inmate’s preferred gender pronoun. A staff member, volunteer, or contractor who consistently fails to use the inmate’s preferred gender pronoun shall be subject to discipline in accordance with relevant rules and regulations established under the bill.

Under current law, the Department of Corrections (DOC) considers gender identity-based housing requests on a case by case basis. Each request is reviewed by a committee, which considers a number of factors including, but not limited to: medical and mental health evaluations that address an inmate’s transgender, intersex, or gender dysphoric status along with a recommendation for suitability to house the inmate in a male correctional facility, female correctional facility, or both types of correctional facilities; the needs expressed by the inmate, including the inmate’s own views with respect to safety and the inmate’s expressed gender identity; security threat level information; the assigned custody level; maximum expiration date and parole eligibility dates; prosecutor notification requirements; the inmate’s criminal history, disciplinary history, and likelihood of perpetrating abuse; types of facilities and location; inmate population; staffing issues; physical plant issues; programming requirements and availability; sentencing and other legal requirements; institutional adjustment; and any other relevant factors. Once the gender identity transfer request has been reviewed, the committee will make a recommendation regarding gender identity based housing. The correctional facility institutional classification committee will consider the recommendation when determining the inmate’s housing assignment.

This bill provides that an inmate who identifies as transgender is required to be assigned to a State correctional facility based on the inmate’s gender identity or expression, regardless of the gender that the individual was assigned at birth or the inmate’s anatomical characteristics. An inmate who is non-binary is to be assigned to a facility based on the inmate’s stated preference.

Under the bill, “gender expression” means a person’s gender-related appearance and behavior; “gender identity” means a person’s internal, deeply held knowledge of their own gender, regardless of the gender the person was assigned at birth; “intersex” means a person whose biological sex characteristics may not fit within the medical definitions of male and female and may include, but shall not be limited to, internal reproductive organs, external genitalia, and sex chromosomes; “non-binary” refers to a person whose gender is not exclusively male or female and may include those with more than one gender or with no gender; and “transgender” refers to a person whose gender identity or gender expression differs from societal expectations associated with the gender the person was assigned at birth.