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Protect the rights of trans New Yorkers in the criminal justice system

By: Bobby Hodgson Assistant Legal Director, Legal & Gabriella Larios Staff Attorney, Legal

As more anti-trans legislation floods state legislatures across the country, New Yorkers are right to feel grateful that none of these bills has gained traction here at home. But New York still falls short of being a place where transgender people’s rights are fully respected and protected. Just look at our criminal legal system.

Jails and prisons are dehumanizing places for anyone, but incarcerated transgender, gender-nonconforming, nonbinary and intersex people are more likely to experience harassment, degradation and violence — especially those who are Black, Indigenous, or other people of color.

Lawmakers have a duty to protect trans New Yorkers from the rampant physical, sexual and emotional abuse that are hallmarks of incarceration. A first step is passing the Gender Identity Respect, Dignity, and Safety Act.

People whose gender expression does not conform to their sex assigned at birth are frequently misgendered and harassed by correctional officers. Most are placed in facilities that do not match their gender identities and put their safety at risk.

In a 2021 survey of transgender and nonbinary people incarcerated in New York state, all of the trans women surveyed were housed in men’s facilities. Nine out of 10 respondents reported that they experienced physical assaults while incarcerated.

The Gender Identity Respect, Dignity, and Safety Act would require that these New Yorkers be housed according to their gender identities, unless they opt out, with limited exceptions. It would guarantee them access to necessary health care, clothing and personal care items.

This legislation could have changed the stories of real New Yorkers like Makyyla Holland, a 25-year-old Black transgender woman. Holland filed a lawsuit asserting that during her six-week stay at Broome County jail in 2021, corrections officers forced her into a men’s unit, beat her, illegally strip searched her and denied her access to prescribed medications, which triggered severe withdrawal symptoms.

Jena Faith has a similar story. Faith is a transgender woman and military veteran who spent four weeks in Steuben County jail in 2018. In a lawsuit against the county, she asserted that after being transferred to the men’s facility without warning, she was groped and sexually harassed, threatened by a man in her unit, and routinely misgendered and mocked. Jail officials also denied Jena access to her prescription hormone medication.

Both lawsuits were filed with the help of the New York Civil Liberties Union and the Transgender Legal Defense & Education Fund. Both women secured settlements establishing some of the strongest and clearest policies in the country. Broome and Steuben counties now must house people consistently with their gender identities, with limited exceptions. The jails must also ensure access to medical care, including hormone treatment, free from discrimination.

While these regional settlements are critical, a statewide bill like the Gender Identity, Respect, Dignity and Safety Actwould help protect trans people from experiencing similar mistreatment in jails and prisons across New York.

Still, jail and prison administrators don’t need to wait for legislation or the threat of litigation to make their facilities safer. County sheriffs who run local jails should immediately adopt policies like the ones in place in Broome and Steuben County. The Department of Corrections and Community Supervision, which runs the state prison system, should do the same.

We look on in horror as other states pass bills that threaten the health and safety of trans people. But while New York’s leaders have called our state a haven for LGBTQ people, they have work to do. They must start by protecting incarcerated trans people, who are some of the most vulnerable in our state.

Bobby Hodgson is a supervising attorney and director of LGBTQ rights litigation at New York Civil Liberties Union. Gabriella Larios is an NYCLU staff attorney.

This op-ed was originally pubished in the Times Union

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