Sex and Gender Identity Measurement in Criminal 

J ustice System Adminis trative Data: Evidence from 

the Ins trument Redes ign Efforts for the Bureau of 

J ustice Statistics’ Survey of Sexual Victimization

Session F-3 : Advancements in Sexual Orientation and Gender Identity Measurement 

October 25th, 2023

Presenter: Emily Buehler, PhD, Bureau of J ustice Statistics 

Contributors: Greta B. Clark, U.S. Census Bureau; Krysten Mesner, U.S. Census Bureau; J essica A.R. White, 

U.S. Census Bureau 
Overview 

1. Description of the Survey of Sexual Victimization (SSV)

2. Instrument redesign – Initial review and scoping

4. Final recommendations

3. Instrument redesign – Moderated and unmoderated cognitive testing 
History of the SSV

• Prison Rape Elimination Act 2003 (PREA)

• Mandated that BJ S collect annual statistics on incidence of prison rape, identification of facilities with high- and low-incidence rates, identification of common characteristics victims, perpetrators

• SSV first administered in 2004 

• PREA Standards 2012 

• Guidance for facilities on meeting requirements under PREA, introduced definitions 

for sexual abuse and sexual harassment 

• SSV Redesign 2022-2023 • Evaluation of sampling designs and instruments for adult and juvenile SSV data 

collections 
SSV population

• Adult correctional facilities include–

• All state departments of corrections and the federal Bureau of Prisons 

(BOP), all facilities operated by U.S. Immigration and Customs 

Enforcement, facilities operated by U.S. military

• Samples of public and private jails, private prisons, Indian country jails

• J uvenile justice facilities include–

• All state juvenile systems and samples of locally and privately operated 

facilities 

• Respondents are PREA administrators & coordinators
Substantiated Incidents

• Allegation was investigated and determined to have occurred, based on a 

preponderance of the evidence (per 28 C.F.R. Part 115.72)

• Form collects information about -

• General characteristics: location, time of day, video surveillance, reporting party, 

nature of incident, use of force, employment position and tenure of staff 

perpetrators

• Outcomes of incidents: injury, sanctions, changes in housing/custody, legal action

• Demographic details of individual victims & perpetrators: sex/gender, age, 

race/ethnicity 
Ins trument redes ign – Initial 

review and s coping
Methods

• BJ S & Census expert review

• Data quality analysis of incident data, 

analysis of write-in responses and notes

• Examination of PREA policies 

• Early-stage scoping interviews

• Initial conversations with PREA 

coordinators and compliance managers 

about the SSV forms – pain points, areas 

for improvement, additions, etc.

• Results from both informed an initial 

revised instrument 

Respondent affiliation Early-stage 

scoping 

Federal BOP 0

State DOCs 3

Local jails 2

Private pris ons , & jails , 

ICE facilities , U.S. military, 

tribal jails

1

State juvenile s ys tems 1

Local or private juvenile 

facilities

2

Total 9
Findings from agency PREA policies

• PREA policies ranging from 2014 to 2022 found for 49 agencies 

state and Washington D.C. Departments of Corrections, federal BOP

• “Transgender” and “Intersex” terms used in 49 policies

• “Gender nonconforming” term used in 41 policies, used AND defined 

in 27 

• “Non-binary” used in 2 policies and “Gender X” used in 1 policy
Findings from scoping interviews 

• Concerns about accuracy in reporting due to inmate/youth forms 

asking for “sex or gender identity” – which are they reporting? 

• Add more inclusive options such as gender nonconforming or nonbinary 

• Specify cisgender male and cisgender female 
Instrument redesign – Moderated and 

unmoderated cognitive testing 
Cognitive testing 

• Moderated cognitive testing

• Two rounds of 60-75 minute interviews completed over the phone and 

Microsoft Teams 

• 15 respondents in each round, 30 interviews total 

• Unmoderated cognitive testing

• Qualtrics web survey asking for feedback on selected items, 10-15 minute 

estimated burden 

• Goal of 100 respondents  189 submissions but with varied item 

missingness across responses 
Respondent 

affiliation

Moderated cognitive 

interviews: Round 1

Moderated cognitive 

interview: Round 2

Unmoderated web 

survey 

Federal BOP 1 0 0

State DOCs 2 4 13

Local jails 3 1 104

Private pris ons , & jails , 

ICE facilities , U.S. 

military, tribal jails

1 3 17

State juvenile s ys tems 3 3 10

Local or private 

juvenile facilities

5 4 45

Total 15 15 189
Round 1 Moderated & Unmoderated –

Inmates/Youth 

Original Item

What was the victim’s s ex or gender 

identity? 

1. Male

2. Female

3. Trans gender

4. Inters ex

Tested Items 

What was the victim’s s ex? 

1. Male

2. Female

3. Inters ex 

What was the victim’s gender identity? 

1. Male 

2. Female

3. Trans gender

4. Gender nonconforming

5. Unknown 
Which of the following terms do you have in your 

facility records? 

33.6 30.9

63

54.5

30.6

34.5

0

10

20

30

40

50

60

70

Adult facilities J uvenile facilities

Percent of responders

Inters ex

Trans gender

Gender nonconforming
Do these categories for sex match your records? 

• Slightly less than half use 

categories of “male, female, 

intersex” in records 

• Of those answering “No”, most 

report only recording “male” and 

“female”, some have “unknown” 

or include “transgender” in this 

record 

42.5

37.3

20.1

45.5

30.9

23.6

0

10

20

30

40

50

Yes No Mis s ing

Percent of respondents

Adult facilities J uvenile facilities
Do you collect gender identity data for inmates/youth? 

44.7

33.6

21.6

51

27.3

21.8

0

10

20

30

40

50

60

Yes No Mis s ing

Percent of respondents

Adult facilities

J uvenile facilities
Other response categories 

• Nonbinary

• Cisgender

• Trans-male, trans-female

• Systems with gender identity and sexual orientation categories all in a 

single record – bisexual, homosexual (lesbian/gay), pansexual, queer, 

straight, transgender, nonbinary/gender nonconforming, prefer to selfdefine, other
Feedback regarding the two-step approach of sex 

and gender identity

• “what is the difference?”

• “it’s confusing”

• “too political” 

• “should not be needed, you are 

either male or female” 

• “we would have to modify our data 

collection system” 

• “adds a step to our process...would 

be time consuming”

• “we ask about pronouns 

inmates/youth prefer” 

• “very helpful in explaining their 

identity” 

• “this is useful, but we are seeing 

more identities during admission”

• “seems like a good idea” 

• “it’s important”
Round 1 Moderated & Unmoderated – Staff

Original Item

What was the gender of the 

staff? 

1. Male

2. Female 

Test Items

What was the s taff perpetrator’s s ex? 

1. Male

2. Female

3. Inters ex 

What was the s taff perpetrator’s gender identity? 

1. Male 

2. Female

3. Trans gender

4. Gender nonconforming

5. Unknown 
Do these categories match your system’s records 

for sex? 

29.1

53

17.9

34.5

43.6

21.8

0

10

20

30

40

50

60

Yes No Missing

Percent of responders

Adult facilities Juvenile facilities

• Nearly all noted “male” and 

“female” as only response 

categories 
Does your record system include the gender 

identity of staff? 

20.1

61.9

17.9 16.3

55

20

0

10

20

30

40

50

60

70

Yes No Mis s ing

Percent of responders

Adult facilities

J uvenile facilities
Feedback on the two-step approach for staff 

• “don’t know if I could access”

• “this would require HR”

• “privacy issues” 

• “assumptions would have to be made”

• “same for inmates, the physical gender is most important” 

• “we don’t ask about gender identity”

• “take it or leave it”

• “I think it would be helpful”
Round 2 Moderated Testing – Inmate/youth 

What was the victim’s sex assigned at birth?

Sex is a multidimensional construct based on a cluster of anatomical and physiological traits that include external genitalia, secondary 

s ex characteris tics , gonads , chromos omes , and hormones .

1. Male 

2. Female

3. Intersex [A person whose sexual or reproductive anatomy or chromosomal pattern does not seem to fit typical definitions of male or 

female. Intersex medical conditions are sometimes referred to as differences in sex development.]

What was the victim’s gender identity? 

Gender identity is a person’s core internal understanding or sense of who they are regardless of sex assigned at birth.

1. Male

2. Female

3. Transgender [A person whose gender identity is different from the person’s sex assigned at birth.]

4. Gender nonconforming [A person whose gender identity does not conform to traditional societal gender expectations.]

5. Unknown 
Round 2 – Findings 

• Respondents can answer both sex and gender identity questions 

based on self-identification at intake or from administrative records 

• PREA risk assessment questionnaires 

• Respondents found definitions shown with the items to be helpful 

• Some said they would consult a “definitions” section elsewhere on the 

form, but preferred seeing definitions with the item in the first 

instance 
Final Recommendation – Inmate/youth 

What was the victim’s s ex as s igned at birth? 

Sex is a multidimens ional cons truct bas ed on a clus ter of anatomical and phys iological traits that include external genitalia, 

s econdary s ex characteris tics , gonads , chromos omes , and hormones .

1. Male 

2. Female

3. Inters ex [A pers on whos e s exual or reproductive anatomy or chromos omal pattern does not s eem to fit typical 

definitions of male or female. Inters ex medical conditions are s ometimes referred to as differences in s ex development.]

What was the victim’s gender identity? 

Gender identity is a pers on’s core internal unders tanding or s ens e of who they are regardles s of s ex as s igned at birth.

1. Male

2. Female

3. Trans gender [A pers on whos e gender identity is different from the pers on’s s ex as s igned at birth.]

4. Gender nonconforming [A pers on whos e gender identity does not conform to traditional s ocietal gender expectations .]

5. Other – s pecify [BOX]

6. Unknown 
Final recommendation – Staff perpetrators

What was the s taff perpetrator’s 

gender? 

1. Male 

2. Female 

• Given the feedback about concerns 

for privacy, difficulty in accessing 

these data, confusion and 

uncertainty related to self- disclosure, a lack of records for 

gender identity, we plan to keep the 

item the same 

• “gender” associated with 

presentation & is usually assumed 

by proxy reporters 
Lessons learned 

• Prison, jail, and juvenile justice administrators are not in agreement 

about sex and gender identity of inmates/youth  different 

definitions, conflicting viewpoints, changing categories & means of 

identification 

• Clarification of terms, breadth of response options are important 

• Proxy reporting for staff is difficult for administrators due to privacy, 

access, and a lack of records 
Ques tions ?
810 Seventh Street, NW, Was hington, DC 20531 | Phone: +1 (202) 307-0765 | bjs .ojp.gov

Emily D. Buehler, PhD

Statistician

Corrections Statistics Unit

Emily.Buehler@usdoj.gov

202-598-1036