Scott Wiener, Democratic California Senator, bill SB 132 was passed in January 2021, granting biological male criminals the right to request transfer to women's prisons based on their self-declared female gender identity, as well as the right for these males to request to be searched by female prison staff.
Although the law applies to both male and female inmates alike, as of now, the transfers have been one-directional. The California Department of Corrections and Rehabilitation (CDCR) website states that as of February 26, 2023, 349 people in male institutions have requested to be housed in a female institution. Of these, 47 were approved for transfer, 21 were denied, and 35 changed their minds. The remaining requests are being reviewed.
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However, 12 individuals in a female institution have requested to be housed in a male institution, and their requests are under review.
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In 2022, the CDCR commissioned The Moss Group, a Washington-based criminal justice consulting firm, to provide long-term policy recommendations to "ensure successful continued implementation of SB 132." SB 132 gives biological male inmates the right to self-declare a female gender identity and request transfer to a women's prison. Still, the report indicated that due to "the absence of clear training and criteria, there appears to be a presumption of transfer," which is "concerning given the serious challenges to safety based on institution type and staffing."
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The Moss Group report acknowledges the difference in male and female offending patterns, noting that while "there may be similar crimes or institutional misconduct findings present in a women's institution, there may also be distinctions between the scope and scale of those crimes and behaviors."
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The report emphasizes the importance of considering the risk of gender-based violence as a key management and security concern. This is particularly relevant considering the housing and supervision required to manage such risks.
The report also highlights the imbalance of power created by allowing biological males to have women rehoused based on health and safety issues when that same ability does not appear to be extended to female inmates.
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"SB 132, Section 4, 2606 (a)(4) allows a transgender person to remove other individuals from a room if safety concerns are expressed. While all housing decisions should be predicated upon safety, this practice creates inconsistency and a perceived imbalance of power in the population," the report reads.
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Furthermore, the report indicates that female inmates who raise personal safety concerns about being housed with transgender women may face disciplinary action, such as being written up or moved to “administrative segregation,” which is a lighter form of solitary confinement.
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“This process has had a significant impact on all of the women in the institution. For some, housing stability was disrupted. This often evoked fear on the part of cisgender women and rejection of transgender women triggering a cycle of anger, divisiveness, and loss,” says the report.
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The CDRC website explains why inmates are no longer housed based on their biological sex but rather on their self-declared gender identity. California state law "prohibits discrimination based on gender, including gender identity," and the "federal Prison Rape Elimination Act (PREA) expressly prohibits housing decisions based solely on an incarcerated person's external genitalia."
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In other words, male criminals are allowed to self-declare as female and be housed in women's prisons to prevent rapes from occurring in federal prisons.
As the debate continues, the CDRC will have to weigh the need to protect the safety of all inmates against the rights of transgender inmates to be housed in facilities that correspond with their gender identity.
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