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The California Senate Bill 132: A Step Towards Preserving The Respect And Dignity Of Incarcerated Transgender Individuals

Rimjhim Sharma
7 Sep 2020 3:39 PM GMT
The California Senate Bill 132: A Step Towards Preserving The Respect And Dignity Of Incarcerated Transgender Individuals
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In a historic move, the state of California in the USA by a vote of 43-13 moved the Senate Bill 132 which if passed by Governor Newsom, would allow Transgender inmates to opt-out of being housed in men's or women's prisons. The bill introduced by Senator Wiener is aimed at safeguarding the basic rights and dignity of gender non-conforming people and seeks to establish "The Transgender Respect, Agency and Dignity Act."

It is an evident fact that the transgender community still faces harassment due to the stigma attached to their gender identity. Much of this is also attributable to the lack of understanding among people that the transgender community is diverse and includes non-binary and intersex persons also. The Bill clearly recognises that the trans-community is a wider concept by defining certain related terms in Section 2(a), such as the terms "transgender", "intersex" and "non-binary". For example, "transgender" is defined as, "broad and inclusive of all gender identities different from the gender a person was assigned at birth".

Further, the Bill has made enabling provisions giving incarcerated transgender persons, the right to choose which of the facilities they want to be housed in, considering their mental and physical comfort as well as safety. If the incarcerated trans-individual faces any health or safety concerns at any point in time, such placement shall have to be reassessed by the authorities. Following such reassessment, the individual shall be allowed to stay in the preferred type of facility, whether men's or women's. Therefore, the impeccable design of this legislation is centered around the premise that a safer environment needs to be created for people across the gender spectrum in state prisons and correctional facilities of California.

Acknowledging Sexual Misconduct against Incarcerated Trans Individuals

Many studies have revealed that out of the many people incarcerated in jails, transgenders are at the most threat of being sexually and physically assaulted. As suggested by various surveys in the US, sex attacks have become rampant in these spaces, and the existing lacunas that lie in addressing these atrocities often lead to the victimization of transgenders. The Legislature to be more authoritative has mentioned in Section 2(b) that, "The United States Supreme Court recognized that incarcerated transgender individuals are particularly vulnerable to sexual abuse and sexual harassment and that disregarding the known risks to a transgender woman constitutes deliberate indifference in violation of the federal constitution." In this way, the Bill acknowledges that the trans-community in prisons is exposed to violence and abuse.

It is also seen how complaints and voices of transgender people are often muffled by more violence in the form of retaliation by the prison staff. The mechanism in place for these staff members to follow or for the victims to report abuse has not been sturdy enough. This is majorly due to the prison staff "not being adequately trained or prepared to prevent, report, or treat inmate sexual assaults." A study conducted by UC Irvine which reveals that "sexual assault is 13 times more prevalent among transgender inmates" also finds mention in Section 2(c) of the Bill. This is inclusive of transgender men who are also subjected to "sexual and gender-based violence, harassment, and discrimination". According to the Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12, harassment cases have been reported not only committed by correction officers or staff but also by an almost equal percentage of other incarcerated individuals. These reasons buttress the need for such a bill to exist to make the prison facilities safer for the transgender community.

Sensitivity towards the issues Trans Individuals face

Another striking feature of the Bill is Section 2(j) which specifically addresses the concept of "gender transition" in the social, legal, and medical context. Gender transition is a phase wherein a transgender individual might face gender dysphoria, that is, a psychological turmoil arising out of the conflict between gender identity and sex assigned at birth. Owing to the lack of support in medical care, mental health, and various other factors, this transition is tougher for the incarcerated trans-people. The provision goes on to state that "Regardless of the ways in which a person chooses or is able to express their gender or to take medical, social, or legal transition steps, they deserve respect, agency, and dignity."

Furthermore, in general practice, the Department of Corrections and Rehabilitation houses the inmates in accordance with the sex assigned at birth. What this Bill seeks to do is to ensure that only those rights of inmates are deprived/hindered that are limited to legitimate penological interests. This means that they cannot be denied the right to respect, agency, and dignity. To ensure this, the Bill seeks to add Sections 2605 and 2606 to the Penal Code. These sections would strengthen the rights of the transgender people in a prison environment by entailing a proper procedure that needs to be adhered to during the initial intake and classification of inmates.

The addition of Sections 2605 and 2606 strengthens the protection of Trans Individuals

Firstly, Section 2605(a) mentions that during the initial intake and classification, in private, the individual shall have to disclose the gender identity- whether the individual identifies as female, male, or non-binary along with the suitable gender pronoun and honorific. Additionally, it also prohibits any disciplining by the staff under the jurisdiction of the Department if an individual fails to disclose the correct or full information, as discussed above. This section also provides the individual an opportunity to update any such gender identity-related information at any given time.

Further on, it is pertinent to look at how this Bill has stressed strict compliance in the consistent usage of gender pronouns and honorifics as submitted by the inmates. Gender pronouns are defined as "third-person singular personal pronouns, such as ''he",'' she," or "they." Nowadays, people are trying to incorporate gender pronouns in common parlance to avoid false assumptions about others' gender identity and also to be respectful of their choices. This ensures dignity and reaffirms the basic right to self-respect of a transgender, non-binary, or intersex person.

An important feature is the "search policy" as mentioned under clause(c) of Section 2606. According to that, it "would require the department, for a person who is transgender, non-binary, or intersex to only conduct a search of that person according to the search policy for their gender identity or according to the gender designation of the facility where they are housed, based on the individual's search preference." This will help preserve their safety and avoid any misconduct sexually or physically.

In toto, this Bill has exhibited the tone of a zero-tolerance policy when it comes to matters of sexual violence/harassment, sexual misconduct, and retaliation by the prison staff. The transgender community continues to be a vulnerable group in society but through this piece of legislation, every effort has been made to ensure their safe and dignified residence in prisons. A transgender individual's preference has been given utmost importance in this legislation. They are also enabled to exercise their choice in housing facility matters where they can decide the safest premises for themselves. Thus, 'choice and preference' of Trans inmates is quite evidently the prominent theme touched upon by this Bill. It works well in their favour in matters of safety and agency concerning the "search policy", and dignity by making it compulsory to address them respectfully by using correct gender pronouns and honorifics.

The Bill will come to fruition after it gains the assent of the Governor before September 31, 2020
Views are personal only.
(Author is a 3rd year Law Student at Dr. Ram Manohar Lohiya National Law University, Lucknow)

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