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Testimony before the

New York City Council

Committee on Criminal Justice

Chair Carlina Rivera

Committee on Women and Gender Equity

Chair Tiffany Cabán

By

Louis A. Molina, Commissioner

NYC Department of Correction

January 25, 2023

Good morning, Chairs Rivera and Cabán and members of the Committees on Criminal Justice and on Women and Gender Equity. I am Louis Molina, Commissioner of the Department of Correction. I am joined today by the Department’s General Counsel, Paul Shechtman.

Thank you for affording me the opportunity to testify today on this important topic.

The New York City Department of Correction is committed to ensuring that transgender, gender non-binary, and intersex individuals – TGNBI individuals – in our custody are treated with dignity and respect and housed safely and appropriately. Historically, TGNBI individuals in prisons and jails have been mistreated and have experienced higher rates of physical and sexual assault than cisgender individuals, both from staff and others in custody. Victimizing a vulnerable population is cruel but, regrettably, throughout correctional history it has not been unusual.

I am proud that the Department has been a national leader in developing safe and progressive policies for the placement and care of TGNBI individuals. Because New York City often serves as a model for other jurisdictions, we engage frequently with experts and stakeholders to

ensure that our policies support the safety and well-being of TGNBI individuals in our custodial care. In 2018, the Department was one of the first correctional institutions to house individuals based upon their gender identity. Since that policy was enacted, gender identity has always been based on self-identification. Unlike other jurisdictions, we do not require a diagnosis of gender dysphoria, a medical examination, or gender-aligned identification documents. In 2019, the Department established an LGBTQ+ Affairs Unit to support LGBTQ+ individuals in our custody, especially TGNBI individuals. This unit and the wide-ranging support it offers is unique among correctional agencies in this country.

My testimony today is divided into three parts: First, I will begin by sharing some basic statistics regarding our TGNBI population. Second, I will set forth some principles that guide the Department in the housing and care of TGNBI individuals. Lastly, I will address the legislative proposals on the agenda today.

The TGNBI Population in New York City Jails

Let me start with some general information and statistics. Individuals who identify as transgender, gender non-binary, or intersex may apply to be housed in the Special Considerations Unit (SCU), a dormitory-style housing area located at the Rose M. Singer Center (RMSC); in a general population unit in RMSC; or in a male facility. Individuals receive access to programming and services that align with their stated gender identity regardless of where they are housed. Final housing determinations are made on a case-by-case basis and take into consideration where an individual states that they feel safest, as well as any management or security concerns.

There are some 50 self-identified TGNBI individuals known to the Department in our custody. As you undoubtedly know, not all individuals who identify as TGNBI choose to disclose their identity to the Department, so it is likely that our TGNBI population includes more than those 50 individuals. Currently, 38 of the 50 known TGNBI individuals are housed in their requested gendered facility. This means that they are housed in a female facility if they have requested to be housed there or in a male facility if they have requested to be housed there. The remaining TGNBI are in protective custody, mental observation housing, and other units as appropriate.

Guiding Principles for the Treatment and Housing of TGNBI Individuals

Now I will turn to the principles that guide the Department in the way we treat and house TGNBI individuals.

First, Department staff are expected to treat TGNBI individuals with respect and dignity. Staff may not use transphobic, homophobic, or otherwise derogatory language in addressing or discussing TGNBI individuals. They must respect an individual’s pronoun choice and preferred name. Any staff member who disrespects or abuses a TGNBI individual will be subject to discipline. This is outlined in our policies and reinforced by Department leadership, myself included.

Second, TGNBI individuals should be processed through an intake facility that is aligned with their gender identity. That means trans women should be admitted to RMSC, where cisgender women are admitted. This is a subject on which we could use help from defense attorneys and the courts. Currently, the securing orders that we receive from the court have only two gender identities: male and female. The result is that too often trans women are identified as males and transported to our male intake facility at the Eric M. Taylor Center (“EMTC”). That should not occur. Correctly identifying an individual’s gender at the outset assists us throughout an individual’s stay in our custody.

Third, individuals should be housed in a facility consistent with their gender identity, absent overriding security or management concerns. Living in gender-affirming housing with others who have shared experiences provides support, community, and affirmation, and makes incarceration less traumatic. Moreover, as history shows, TGNBI individuals face greater risk of assault, discrimination, and humiliation if placed in a housing unit that is misaligned with their gender. Simply stated, we recognize that sex assigned at birth cannot determine placement.

Fourth, we will continue to operate a Special Considerations Unit (“SCU”) to provide TGNBI individuals the opportunity to live with others with shared experiences. However, it is important to recognize that many TGNBI individuals prefer to reside in general population in RMSC, and others prefer to be housed in a male facility; their preference should be given great weight. TGNBI individuals are not a monolith – each individual has unique needs and challenges – and they differ in where they feel safest. In short, there is no one-size-fits all approach to housing determinations, and our placement policy must reflect that reality.

Fifth, as a presumptive rule, self-identified gender should determine placement, but it cannot be determinative. An inflexible policy of placement based on self-identified gender would present safety concerns for transgender males. They could be subject to sexual harassment, abuse, and violence if placed with cisgender men, and they typically prefer to be placed in a women’s facility.

Sixth, TGNBI individuals should not be transferred out of a facility aligned with their gender for conduct that would not cause a cisgender individual to be transferred. We must focused on treating all persons in custody equitably regardless of their gender.

Seventh, TGNBI individuals should have access to the same programming options as cisgender individuals. The Department provides unique and gender-affirming programs and service opportunities for TGNBI individuals regardless of where they are housed. We also provide TGNBI individuals with an extensive LGTBQ+ reentry resource guide and seek to connect individuals to a network of gender-affirming community providers that can be accessed upon release. And we actively work closely with Correctional Health Services (“CHS”) to ensure that TGNBI individuals can access gender-affirming health care and meet their mental health care needs.

Additionally, all TGNBI individuals have access to toiletry and clothing items that align with their gender identity and gender expression. This year, we have added chest binders to the list of available items so that trans men and gender non-binary individuals can appear more traditionally masculine if they choose. Proper clothes and undergarments can decrease feelings of gender dysphoria and reduce incidents of self-harm among those who wish to use them.

Proposed Legislation

Finally, I would like to take a moment to highlight a few of the legislative items on the agenda today. Intro. 728 would provide TGNBI individuals the right to appeal denials of preferred placement and require that CHS and the Board of Correction participate in the appeal process. Neither of those entities, however, has expertise in classification, security, or jail management.

Safe placement is the Department’s job and must remain our responsibility. Moreover, the Department already has a housing reconsideration process that allows TGNBI individuals to seek review of their housing placement. Individuals can apply for reconsideration if they have been denied their preferred housing placement or removed from their preferred housing placement. The reconsideration process encourages individuals to provide additional information, including references and recommendations from community groups and our staff, which has not been previously considered and might support a different outcome. We must be open-minded enough to change our mind on placement when new information or changed circumstances call for it.

Intro. 831 would enhance a resource navigator program within the Mayor’s Office of Criminal Justice to assist women and gender expansive persons in locating appropriate reentry programs. I support efforts to expand available resources for both women and TGNBI individuals who have experienced incarceration as reentry programs reduce the likelihood of recidivism. We look forward to working with the Council to ensure that appropriate reentry services are available.

Finally, Resolution 117 calls on the state legislature and the Governor to enact a bill that would require the Office of Court Administration to update the securing order form to include a gender X option. We support efforts to expand the gender identity options on securing orders as this will assist us in making appropriate housing placements for those coming into our custody.

Conclusion

As I stated at the outset, the Department has been a leader in the placement and care of transgender individuals, enacting groundbreaking policies that outpace other jurisdictions. That

said, it is incumbent on the Department to continuously evaluate and update our policies to meet the evolving needs of TGNBI individuals and all persons in our custodial care, which to date are almost 6,000; and strengthen policies and directives where necessary. Ensuring a safe and humane environment for everyone in our custodial care is our highest priority. Thank you for the opportunity to testify today on this important subject.