In California, a law that took effect on January 1, 2021 has prompted hundreds of transgender prison inmates to request to be transferred to facilities that align with their gender identity. According to the California Department of Corrections and Rehabilitation (CDCR), 261 such requests have been made so far. While transgender inmates make up just over 1% of the state’s prison population, the requests have raised concerns among women’s facilities that the supposed influx of transgender inmates will lead to increased sexual violence. Some prison guards have reportedly been telling female inmates to prepare for the worst, stating that “men are coming.”
Out of all 261 requests, only six requested to be housed in men’s facilities. There are also concerns that some inmates may abuse the new law by making false claims about their gender identity in order to be transferred to a women’s prison. CDCR has a classification process in place to review an inmate’s history, including their medical and mental health needs and safety concerns, before making decisions on housing. This process follows standards from the Prison Rape Elimination Act (PREA) and gives inmates one of three designations: at risk as a victim, at risk as an abuser, or not identified as being at risk. Inmates designated as being at risk as a victim cannot be housed with those identified as being at risk as an abuser.
California’s “Transgender Respect, Agency, and Dignity Act,” signed into law in 2020, requires CDCR to recognize an inmate’s self-reported gender identity and pronouns and house them in facilities designated for men or women based on their reported gender identity. If an inmate is denied placement in a facility that aligns with their reported gender identity, CDCR must provide in writing “a specific and articulable basis why the department is unable to accommodate” the individual’s request.
In November 2021, the Women’s Liberation Front (WoLF) – a self-described “radical feminist” organization known for its opposition to transgender rights – filed a federal complaint against CDCR, alleging that the law puts incarcerated cisgender women in danger and seeking, among other things, a permanent injunction against the law’s implementation. The lawsuit was filed on behalf of four incarcerated women and Woman II Woman, a California nonprofit. The lawsuit alleges that the law cannot be applied without violating the rights of cisgender women and that it puts them at risk of sexual violence.
In May 2022, three LGBTQ+ organizations announced their intention to intervene in the lawsuit, stating that the law protects transgender, nonbinary, and intersex inmates from discrimination and abuse. The organizations – the National Center for Lesbian Rights, the Transgender Law Center, and the Legal Aid at Work – argue that the law is necessary to ensure that transgender inmates are treated with dignity and respect and to prevent discrimination and abuse against them. They also argue that the law does not pose a risk to cisgender women and that it includes provisions to protect the safety of all inmates.