Under the Prison Rape Elimination Act (PREA) Standards, transgender and intersex persons have some particular protections while in custody. Showers need to be private. There are some limits on searches. Jail and prison officials should give serious consideration to a transgender or intersex person’s own views on where they can be safely housed, including when assigning them to male or female facilities. In New York City, the Human Rights Commission has determined that housing should presumptively be based on gender identity. Birth anatomy should not be the determining factor in decisions on housing. In the New York State prison system, you can request housing in a gender-congruent facility by asking your counselor.
Read the PREA Standards here.
Transgender people should have access to gender-confirming treatment. From a legal standpoint, “Gender Dysphoria” is a serious medical condition. Medical treatment should be consistent with accepted medical standards, and blanket bans on treatment, such as on access to hormones or to gender confirmation surgery, are illegal.
People should generally be allowed gender-appropriate clothing and grooming supplies, to allow people to present themselves consistently with their gender identity.
In New York City jails and New York State prisons, some progress in this area has been made, spearheaded by this office and the work of other advocates and the transgender community.
Progress has been too slow. Despite the legal requirements, too many transgender, non-binary and intersex persons in custody remain at extremely high risk of abuse. They are not treated in the same manner as cisgender persons, because of jail and prison officials’ claims that they cannot be housed consistently with their gender identity because of safety and security concerns.
We describe some basic information about filing a lawsuit for sexual abuse or a lack of needed medical care for people in jail or prison in other sections of our website. If the person is suing for discrimination under the Equal Protection Clause of the federal or State Constitutions or under the City or State Human Rights Laws, they should file a grievance and appeal it to the highest level in order to preserve their right to bring suit. Again, Notices of Claim must be filed within 90 days of the discriminatory to preserve the right to bring State law claims.
We are very concerned about the housing and treatment of LBGTQ persons in custody and urge you to contact us.
In the city jails, there is a transgender housing unit (THU) where many transgender women are housed safely. The THU is now in the women’s jail, so transgender women can program with, and on occasion be housed with cisgender women. Because they are housed in the women’s jail, they have access to the same clothing, commissary and packages as any other women. We continue to fight for gender-consistent housing, programming, and general treatment within the city jails.
If someone’s rights have been violated in the New York City jails, you or they can report the problem to DOC by calling 311 or by emailing the NYC Department of Correction at ConstituentServices@doc.nyc.gov. The person can also file a complaint with the New York City Human Rights Commission by calling 311 or 718 722-3131, online, or in person.
The person in custody can also file a grievance and appeal it to the highest level.
In the State prisons, progress has been slower and different than in the New York City jails. In the prisons, a very small number of transgender women are housed in women’s prison. They are, however, fully integrated into regular prison life and are not housed in a special protective housing unit.
State prisons now claim to provide people with gender-affirming clothing, including undergarments. The person in custody should report their gender identity to the Department of Corrections and Community Supervision (“DOCCS”), and can make a request to the Health Unit of their facility for a medical permit to possess gender-affirming clothing. That permit should be permanent, and issued without an expiration date.
Transgender persons can also request that pat frisks be conducted by an officer of the person’s preferred gender, and DOCCS maintains that it is their policy to “honor that request whenever possible.”
If someone’s rights have been violated in the prisons, who to contact depends on the problem. If it an issue of safety from another person in custody they can ask for protective custody, but it is very restrictive housing. They, or you, can contact officials at the prison, including the PREA Deputy Superintendent. If it’s a medical issue, you can contact the medical staff at the prison or Central Office Staff in Albany via:
The Chief Medical Officer
State Office Campus, Building Two
Albany, N.Y. 12226
The information in this document has been prepared by The Legal Aid Society for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. You should not act upon any information without retaining professional legal counsel.
Last Updated: 19 September 2019
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