Special Review – Incarcerated Transgender Nonbinary Intersex Individuals

Roy W. Wesley, Inspector General Bryan B. Beyer, Chief Deputy Inspector General of the OFFICE OIG INSPECTOR GENERAL Independent Prison Oversight September 2020 Special Report The California Department of Corrections and Rehabilitation Has Taken Thoughtful and Important Steps to Address the Difficult Conditions of Confinement for Incarcerated Transgender, Nonbinary, and Intersex Individuals Electronic copies of reports published by the Office of the Inspector General are available free in portable document format (PDF) on our website. We also offer an online subscription service. For information on how to subscribe, visit www.oig.ca.gov. For questions concerning the contents of this report, please contact Shaun Spillane, Public Information Officer, at 916-255-1131. STATE of CALIFORNIA OIG OFFICE of the Roy W. Wesley, Inspector General INSPECTOR GENERAL Bryan B. Beyer, Chief Deputy Inspector General Independent Prison Oversight Regional Offices Sacramento Bakersfield September 1, 2020 Rancho Cucamonga The Governor of California President pro Tempore of the Senate Speaker of the Assembly State Capitol Sacramento, California Dear Governor and Legislative Leaders: Enclosed please find the Office of the Inspector General’s (OIG) Special Report titled The California Department of Corrections and Rehabilitation Has Taken Thoughtful and Important Steps to Address the Difficult Conditions of Confinement for Incarcerated Transgender, Nonbinary, and Intersex Individuals. Pursuant to California Penal Code section 6126 (b), the Inspector General may, under policies developed by the Inspector General, initiate an audit or review on the Inspector General’s own accord. We chose to review the California Department of Corrections and Rehabilitation’s (the department) efforts to address the difficult and evolving issues transgender, nonbinary, and intersex individuals face while in custody. In this report, we summarize what we observed at some of the Transgender Housing and Search Working Group meetings, surveys, forums, and staff training sessions conducted by the department as well as through our conversations with external stakeholders and departmental leadership. We outline the concerns raised by incarcerated individuals through the surveys and at the forums; the concerns and insights of external stakeholders regarding the incarcerated population; and the department’s thoughtful and important steps to address the issues voiced by both incarcerated individuals and external stakeholders, and to improve overall conditions of confinement for the incarcerated transgender, nonbinary, and intersex population. While we found that conditions of confinement for this incarcerated population are difficult, we commend the department for providing incarcerated transgender, nonbinary, and intersex individuals with an opportunity to share their stories and voice their concerns, and for adapting departmental policies and practices to improve conditions of confinement for this vulnerable population. Based on our observations, we provide recommendations of additional steps the department should take to address the conditions we outline in this report. Sincerely, Roy W. Wesley Inspector General Gavin Newsom, Governor 10111 Old Placerville Road, Suite 110 Sacramento, California 95827 Telephone: (916) 255-1102 www.oig.ca.gov Return to Contents ii | Special Report (This page left blank for reproduction purposes.) Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | iii Contents Summary 1 Introduction 3 Transgender, Nonbinary, and Intersex Individuals Reported They Are Vulnerable to Violence and Discrimination While Incarcerated 11 Incarcerated Transgender, Nonbinary, and Intersex Individuals Described a Culture of Disrespect by Both Staff and Other Incarcerated Individuals 13 Incarcerated Transgender, Nonbinary, and Intersex Individuals Reported They Face Discrimination in Access to Programs and Services 22 Transgender, Nonbinary, and Intersex Incarcerated Individuals Expressed Frustration With the Department’s Provision of Health Care 28 External Stakeholders Echoed the Concerns of Transgender, Nonbinary, and Intersex Incarcerated Individuals and Advocated on Their Behalf 31 External Stakeholders Reiterated Concerns That Transgender, Nonbinary, and Intersex Incarcerated Individuals Are Afraid to Report Sexual Assault Because Doing So May Subject Them to Being Housed in Prolonged Isolation 31 External Stakeholders Reiterated That Incarcerated Transgender, Nonbinary, and Intersex Individuals Lack Access to Services 33 External Stakeholders Raised Additional Concerns Relating to Systemic Oversight of the Department’s Handling of Grievances 34 External Stakeholders Sponsored Senate Bill 132 to Improve the Lives of Incarcerated Transgender and Gender Nonconforming Individuals 35 Through the Working Group, the Department Took Thoughtful and Important Steps to Improve Its Policies and Practices 37 In Response to Insights Gained Through the Surveys and Forums, the Department Proposed Modifications to Its Policies and Practices 37 The Department’s Working Group Proposed Modifications to Its PREA Screening Form, and Developed a Gender Identity Questionnaire and Script 39 The Working Group Examined and Proposed Changes to the Department’s Staff Training Relating to Transgender, Nonbinary, and Intersex Incarcerated Individuals 41 The Department Has Effectuated Positive Change by Hosting Provider Fairs, Providing Transgender, Nonbinary, and Intersex Individuals With a Voice in Inmate Advisory Council Subcommittees, and Holding Its First Transgender Day of Remembrance 43 Senate Bill 132 Will Require Further Changes to the Department’s Policies 45 Recommendations 47 Appendices 49 The California Department of Corrections and Rehabilitation’s Response 75 Office of the Inspector General, State of California Return to Contents iv | Special Report Illustrations Tables Terms Used in This Report vi Figures The OIG’s Mandate v 1. Activities of the Transgender Housing and Search Working Group Between January 2019 and February 2020 8 2. Identities of Transgender, Nonbinary, and Intersex Inmate Survey Participants Between November 2019 and January 2020 12 3. Search Preferences of Transgender, Nonbinary, and Intersex Inmate Survey Participants Between November 2019 and January 2020 15 4. Transgender, Nonbinary, and Intersex Inmate Survey Participants’ Responses Regarding Safety in Reporting Discrimination, Harassment, and Violence Between November 2019 and January 2020 18 5. Housing Preferences of Transgender, Nonbinary, and Intersex Inmate Survey Participants Between November 2019 and January 2020 20 6. Gender Identities of Transgender, Nonbinary, and Intersex Inmate Survey Participants Between November 2019 and January 2020 25 A–1. Transgender, Nonbinary, and Intersex Inmate Survey 50 A–2. The Department’s Analysis of the Transgender, Nonbinary, and Intersex Inmate Survey Results at Institutions for Women 52 A–3. The Department’s Analysis of the Transgender, Nonbinary, and Intersex Inmate Survey Results at Institutions for Men 54 Photographs 1. Senator Scott Wiener With Incarcerated Transgender, Nonbinary, and Intersex Individuals 2 2. Transgender, Nonbinary, and Intersex Inmate Survey 7 3. Transgender Access Card 24 4. PREA Screening Form 39 5. Associate Director, the Department’s Office of Correctional Policy Research, Division of Correctional Policy Research and Internal Oversight, Speaking With Two Incarcerated Individuals 43 6. Director, the Department’s Division of Correctional Policy Research and Internal Oversight, Speaking With Three Incarcerated Individuals 44 Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | v T he Inspector General may, under policies developed by the Inspector General, initiate an audit or review on the Inspector General’s own accord. — State of California Penal Code section 6126 (b) Office of the Inspector General, State of California Return to Contents vi | Special Report Terms Used in This Report Cisgender Of, relating to, or being a person whose gender identity corresponds with the sex the person had or was identified as having at birth.* Gender Affirming Surgical procedures that change one’s body to conform to one’s Surgery gender identity.† Gender Expression The physical and behavioral manifestations of one’s gender identity.* A distressed state arising from conflict between a person’s gender identity Gender Dysphoria and the sex the person has or was identified as having at birth.* A person’s internal sense of being male, female, some combination of Gender Identity male and female, or neither male nor female.* Exhibiting behavioral, cultural, or psychological traits that do not Gender correspond with the traits typically associated with one’s sex: having a Nonconforming gender expression that does not conform to gender norms.* A form of address prefixing an individual’s name, which signals politeness, Honorific respect, or social deference. Examples include Mr., Mrs., Ms., and Miss. The condition (such as that occurring in congenital adrenal hyperplasia or androgen insensitivity syndrome) of either having both male and female Intersexuality gonadal tissue in one individual or of having the gonads of one sex and external genitalia that is of the other sex or is ambiguous.* An abbreviation and umbrella term used to encompass the spectrums of gender and sexuality and refer to a diverse community. The term stands LGBTQIA+ for lesbian, gay, bisexual, transgender, queer/questioning (one’s sexual or gender identity), intersex, and asexual/aromantic/agender;* the plus sign represents every other identity on the gender and sexuality spectrum. The investigative services unit investigator or another designated Locally Designated institutional staff member who has been trained to conduct investigations Investigator into allegations of sexual violence and staff sexual misconduct. The Medical Classification Chrono (MCC) is part of the Medical Classification System (MCS) and is used by California Correctional Health Care Services and California Department of Corrections and Rehabilitation Medical (CDCR) as part of a system for considering medical factors in making Classification Chrono patient placement decisions. The MCC is generated via an electronic (MCC) database and is viewable in the Strategic Offender Management System (SOMS), and is also printed for the patient’s records. It is primarily utilized to communicate the need for transmission-based precautions to custody staff.‡ Relating to or being a person who identifies with or expresses a gender Nonbinary identity that is neither entirely male nor entirely female.* Any of a small set of words in a language that are used as substitutes for nouns or noun phrases and whose referents are named or understood in Pronouns the context. Examples include he/him/his, she/her/hers, or they/them/theirs.* Continued on next page. Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | vii Terms Used in This Report (continued) Substantiated An allegation that was investigated and determined to have occurred.§ Allegation The Strategic Offender Management System. SOMS is primarily comprised of two complex software applications that assist CDCR staff in managing their offender population. These applications are the Electronic Records Management System (ERMS) and the Electronic Offender Management Information System (eOMIS). ERMS is used to Strategic Offender manage an offender’s central file (documentation) that is scanned into Management System ERMS to be accessed by CDCR users anywhere in the state. eOMIS is the (SOMS) main web-based/centralized application that manages an offender’s time with CDCR while either in custody or on Parole. Various components of eOMIS include: Intake, Movements, Counts, Offender Grievance Tracking/ Appeals, Visitation, Classification, Sentence Calculation, Discipline, Gangs, etc. CDCR continues to add significant functionality to eOMIS on a regular basis.‡ Of, relating to, or being a person whose gender identity differs from the Transgender sex the person had or was identified as having at birth.* A person who was assigned female at birth, but identifies and expresses Transgender Man their gender as male.|| A person who was assigned male at birth, but identifies and expresses Transgender Woman their gender as female.|| The period during which a person begins to live as their true gender. It Transition may include changing one’s name, taking hormones, having surgery, and altering legal documents.† Unsubstantiated An allegation that was investigated and insufficient evidence was Allegation obtained to determine if the allegation did or did not occur.§ * Merriam-Webster.com Dictionary, s.v. “cisgender,” “gender expression,” “gender dysphoria,” “gender identity,” “gender nonconforming,” “intersexuality,” “LGBTQIA,” “nonbinary,” “pronouns,” and “transgender,” accessed July 17, 2020, https://www.merriam-webster.com/dictionary/cisgender. † Transgender Terminology, hr.cornell.edu, accessed July 17, 2020. https://hr.cornell.edu/sites/default/files/ trans%20terms.pdf. ‡ The California Department of Corrections and Rehabilitation. § Prison Rape Elimination Act (PREA) Annual Report – Calendar Year 2018, cdcr.ca.gov, accessed July 17, 2020. https://www.cdcr.ca.gov/prea/wp-content/uploads/sites/186/2020/01/PREA-Annual-Report-2018.pdf. || Your Dictionary.com Dictionary, s.v. “transgender man,” and “transgender woman,” accessed July 17, 2020. https://www.yourdictionary.com/transgender-man. Office of the Inspector General, State of California Return to Contents viii | Special Report (This page left blank for reproduction purposes.) Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 1 Summary The California Department of Corrections and Rehabilitation (the department) incarcerates approximately 1,200 transgender, nonbinary, and intersex individuals.1 These individuals form a vulnerable population within the prison system, as they face fear, discrimination, and violence. For many years, the unique needs of this population had been overlooked by the department. However, more recently, the department has worked with external stakeholders, lawmakers, and the incarcerated transgender, nonbinary, and intersex population itself to develop policies, procedures, and training for staff with the intent to improve conditions of confinement for this incarcerated population. To that end, the department established a working group with various external stakeholders and administered forums and surveys to query transgender, nonbinary, and intersex individuals directly. In addition, the department is currently working with lawmakers who are crafting legislation that can improve daily life for individuals within this population. The Office of the Inspector General (OIG) observed the department’s working group and its efforts to obtain pertinent information from the transgender, nonbinary, and intersex incarcerated population. We also observed the development of the staff training that resulted from the working group, and the implementation of some of that training. The department has made noticeable efforts to improve departmental culture. However, we believe there is much work to be done to improve the safety and security of the transgender, nonbinary, and intersex population and to afford these individuals basic respect. We believe the department should take steps to implement the mandates of Senate Bill 132, regardless of whether the bill is signed into law, and require that staff and incarcerated individuals comply with these mandates. In addition, the department should establish oversight of its compliance with departmental policies relative to this population, so that both staff and incarcerated individuals are held accountable for failure to comply with policies. The department should continually optimize shelf space in canteens and effectively manage the inventory of clothing and property items for transgender, nonbinary, and intersex people as demographics, trends, and purchasing fluctuates. Moreover, the department should acknowledge that the gender binary is a social construct and work to dismantle it within departmental culture to allow more equitable access to vocational training and property items and to improve overall conditions of confinement for the transgender, nonbinary, and intersex population. 1. We recognize that terminology regarding transgender, nonbinary, and intersex issues is rapidly evolving. Some terms or definitions may not be universally accepted, and there is some disagreement among professionals and communities regarding the correct words and definitions. We use terminology in this report carefully, with intent to shed light on the complex and difficult issues facing incarcerated transgender, nonbinary, and intersex individuals with fairness, integrity, and respect. Office of the Inspector General, State of California Return to Contents 2 | Special Report Introduction A transgender individual is a person whose gender identity differs from their assigned sex at birth.2 As of June 4, 2020, the California Department of Corrections and Rehabilitation (the department) incarcerated approximately 1,176 individuals who identified as transgender or had symptoms of gender dysphoria.3 Because the transgender population has unique needs and may also be at a higher risk of victimization than the cisgender population, it is imperative that the department comply with Federal and State laws and provide these individuals with safe housing, medically necessary treatment, and protection as it should for all other individuals in its custody. Photo 1. Senator Scott Wiener with incarcerated transgender, nonbinary, and intersex Federal and State laws, State regulations, and departmental policies persons. Photo provided courtesy of Terry Thornton of the California Department of already impose obligations on the department to provide safe housing, Corrections and Rehabilitation. medically necessary treatment, and protection for all incarcerated individuals, especially those who may be at a higher risk of victimization.4 Under the Fourth Amendment, incarcerated individuals have a limited right to privacy and are protected from repetitive and harassing searches.5 The Eighth Amendment imposes duties on prison officials to take “reasonable measures to guarantee the safety of inmates” and “protect prisoners from violence at the hands of other prisoners.”6 Under the Eighth Amendment, incarcerated people have a right to be free from “cruel and unusual punishment,” and prison officials must not be “deliberately indifferent” to a “substantial risk of serious harm” to an incarcerated individual at the hands of anyone, including another 2. California Code of Regulations, Title 15, Section 3000; World Professional Association for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (7th Version, 2012). 3. The department determined this number by counting the number of incarcerated individuals with the “transgender” box checked on their Medical Classification Chronos. This number does not include transgender, nonbinary, or intersex individuals who do not have the “transgender” box checked on their Medical Classification Chronos. 4. Farmer v. Brennan (1994) 511 U.S. 825; Doe v. District of Columbia (D.C. Cir. 2016) 215 F.Supp.3d 62, 75. 5. Bull v. City and County of San Francisco (9th Cir. 2010) 595 F.3d 964, 974–975; Michenfelder v. Summer (9th Cir. 1988) 860 F.2d 328, 332. 6. Ibid. 833, citations omitted. Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 3 Introduction “No one deserves to be treated disrespectfully because of their gender identity or expression.” —Secretary Ralph Diaz California Department of Corrections and Rehabilitation January 2020 A transgender individual is a person whose gender identity differs from their assigned sex at birth.2 As of June 4, 2020, the California Department of Corrections and Rehabilitation (the department) incarcerated approximately 1,176 individuals who identified as transgender or had symptoms of gender dysphoria.3 Because the transgender population has unique needs and may also be at a higher risk of victimization than the cisgender population, it is imperative that the department comply with Federal and State laws and provide these individuals with safe housing, medically necessary treatment, and protection as it should for all other individuals in its custody. Photo 1. Senator Scott Wiener with incarcerated transgender, nonbinary, and intersex Federal and State laws, State regulations, and departmental policies persons. Photo provided courtesy of Terry Thornton of the California Department of already impose obligations on the department to provide safe housing, Corrections and Rehabilitation. medically necessary treatment, and protection for all incarcerated individuals, especially those who may be at a higher risk of victimization.4 Under the Fourth Amendment, incarcerated individuals have a limited right to privacy and are protected from repetitive and harassing searches.5 The Eighth Amendment imposes duties on prison officials to take “reasonable measures to guarantee the safety of inmates” and “protect prisoners from violence at the hands of other prisoners.”6 Under the Eighth Amendment, incarcerated people have a right to be free from “cruel and unusual punishment,” and prison officials must not be “deliberately indifferent” to a “substantial risk of serious harm” to an incarcerated individual at the hands of anyone, including another 2. California Code of Regulations, Title 15, Section 3000; World Professional Association for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (7th Version, 2012). 3. The department determined this number by counting the number of incarcerated individuals with the “transgender” box checked on their Medical Classification Chronos. This number does not include transgender, nonbinary, or intersex individuals who do not have the “transgender” box checked on their Medical Classification Chronos. 4. Farmer v. Brennan (1994) 511 U.S. 825; Doe v. District of Columbia (D.C. Cir. 2016) 215 F.Supp.3d 62, 75. 5. Bull v. City and County of San Francisco (9th Cir. 2010) 595 F.3d 964, 974–975; Michenfelder v. Summer (9th Cir. 1988) 860 F.2d 328, 332. 6. Ibid. 833, citations omitted. Office of the Inspector General, State of California Return to Contents 4 | Special Report incarcerated individual.7 Prison officials are also obligated under the Eighth Amendment to provide the incarcerated population with adequate medical care.8 Federal law, established through the Prison Rape Elimination Act (PREA) of 2003, set a zero-tolerance standard for prison rape and required the United States Attorney General to publish national standards to prevent, detect, and respond to sexual violence, sexual misconduct, and sexual harassment in all prisons. It also required that state prisons adopt standards consistent with national standards in order to receive federal funding.9 In response, the California Legislature enacted the Sexual Abuse in Detention Elimination Act (SADEA) to protect California’s incarcerated population from sexual abuse. The law mandates, through several core requirements, that the department establish policies and procedures to address the sexual abuse of incarcerated individuals.10 Following the model established by PREA and SADEA, the department promulgated regulations, policies, and procedures intended to provide all incarcerated individuals with safe housing and humane and respectful treatment.11 Departmental policy requires that all staff—including employees, volunteers, and contractors—receive instruction on preventing, detecting, responding to, and investigating sexual violence, staff sexual misconduct, and sexual harassment. The department provides this instruction during its new employee orientation and annual training as well as in its training academy curriculum for new officers.12 Furthermore, the department provides specialized training regarding PREA to locally designated investigators at each institution.13 In 2012, the department designated 11 institutions to house transgender, nonbinary, and intersex individuals to ensure they receive safe housing and necessary services, including medical and mental health treatment. 7. Ibid., 833–834. 8. Edmo v. Corizon, Inc. (9th Cir. 2019) 935 F.3d 757, 768-769; Rosati v. Igbinoso (9th Cir. 2015) 791 F.3d 1037; Kosilek v. Spencer; (1st Cir. 2014) 774 F.3d 63; Fields v. Smith (7th Cir. 2011) 653 F.3d 550; but see Avilez v. Barr (N.D. Cal., Feb. 5, 2020, No. 19-CV-08296-CRB) 2020 WL 570987; laws regarding transgender, nonbinary, and intersex individuals vary in federal jurisdictions and different states. Unless otherwise indicated, the law cited in this report is applicable to entities and individuals in California and will likely change as more cases are litigated and appealed. 9. 42 United States Constitution, Section 15601, et seq. 10. California Penal Code section 2635 et seq.; Sexual Abuse in Detention Elimination Act of 2005; US Department of Justice, National Standards to Prevent, Detect and Respond to Prison Rape, Federal Register, 77, no. 119, (June 20, 2012); California Department of Corrections and Rehabilitation, Department Operations Manual (hereafter referred to as DOM), Article 44, et seq. 11. DOM, Sections 33030.3.1, 31140.5, and 33030.3. 12. DOM, Section 54040.4. 13. Department of Corrections and Rehabilitation Training Materials: Specialized PREA Training for Locally Designated Investigators (June 2015). Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 5 That number has since grown to 14 institutions.14 To the extent practicable, transgender, nonbinary, and intersex individuals are now housed at one of the 14 designated institutions. If individuals want to be housed at another type of institution (e.g., a transgender woman requesting housing at an institution for women), they can submit a request to their assigned correctional counselor. That request is then considered as part of the department’s classification process.15 In 2015, a federal district court in California found the department violated the Eighth Amendment rights of Ms. Norsworthy, a transgender woman diagnosed with gender dysphoria and housed at an institution for men, when it denied her medically necessary gender affirming surgery.16 The order was stayed while the department appealed the order to the Ninth Circuit, but Ms. Norsworthy paroled before the hearing. Later in 2015, the department entered into a settlement agreement in Quine v. Beard. As part of the settlement, the department agreed to provide Ms. Quine with gender-affirming surgery and revise its policies to allow identified incarcerated individuals access to property items consistent with their gender identity and expression. The department amended its regulations to permit identified individuals at designated institutions to possess state-issued clothing consistent with their gender identity and expression and created the Transgender Inmates Authorized Personal Property Schedule (TIAPPS), which expanded the list of available items for these individuals.17 The department’s operations manual also provides that individuals identified as transgender on the Medical Classification Chrono shall, upon request, receive state-issued bras or boxer shorts via the institution’s clothing room and be permitted to purchase such items as needed.18 To facilitate transgender individuals’ access to proper clothing and other authorized items from canteens and approved vendors, the department established the Transgender Access Card (access card) program in June 2019. When requesting, purchasing, or picking up approved transgender, nonbinary, and intersex items, individuals must have a transgender access card and state-issued identification card. 14. The 14 institutions include California Medical Facility, Richard J. Donovan, San Quentin State Prison, Mule Creek State Prison, California Substance Abuse Treatment Facility, California State Prison Sacramento, Salinas Valley State Prison, California Institution for Men, Kern Valley State Prison, California Men’s Colony, California Health Care Facility, Central California Women’s Facility, California Institution for Women, Folsom Women’s Facility; DOM, Section 62080.14. 15. California Code of Regulations, Title 15, Section 3269; DOM, Section 54040.1 et seq. 16. Norsworthy v. Beard (N.D. Cal. 2015) 87 F.Supp.3d 1164, appeal dismissed and remanded (9th Cir. 2015) 802 F.3d 1090. 17. Quine v. Kernan (9th Cir. 2018) 741 Fed.Appx. 358; Quine v. Beard (N.D. Cal., August 7, 2015, No. 3:14-cv-02726); California Code of Regulations, Title 15, Section 3000, Section 3030, subdivision (c), Section 3190, subdivision (d), Section 3269; Transgender Inmates Authorized Personal Property Schedule (TIAPPS) (April 4, 2018). 18. DOM, Section 62080.14.; California Code of Regulations, Title 15, Section 3030, subdivision (c). Office of the Inspector General, State of California Return to Contents 6 | Special Report An individual may request a transgender access card by submitting an Inmate Request for Interview, Item of Service form.19 Also, in 2019, the department formed its Transgender Housing and Search Working Group to assess and revise its housing and search policies and procedures specific to incarcerated transgender, nonbinary, and intersex individuals.20 The OIG observed the working group meetings. Based on our observations, the working group remained steadfast in developing policies and procedures pertaining to housing and searches, and simultaneously addressed interrelated issues. Members engaged in frank discussions and robust analysis regarding the needs of the incarcerated population, departmental policies and procedures, technology, systemic problems, departmental culture and practices, resources, and potential solutions. As part of the working group, the department collaborated with external stakeholders to develop and administer a survey at 18 institutions to query the incarcerated transgender, nonbinary, and intersex population. Information gathered through the survey has helped the department to better understand the experiences and preferences of this incarcerated population.21 The survey included both structured multiple-choice questions and an opportunity to provide written comments regarding additional issues of concern. The surveys were voluntary and anonymous, but included demographics such as the institution where the department administered the survey, the gender identity participants most often use to describe themselves, and whether participants identify as a transgender man, a transgender woman, a nonbinary individual, an intersex individual, or other. Following each survey session, the department invited incarcerated transgender, nonbinary, and intersex individuals to participate in a forum. During the forums, the OIG observed departmental personnel engaging in candid discussions with transgender, nonbinary, and intersex participants. Facilitators and departmental staff demonstrated professionalism, empathy, and a commitment to improving conditions of confinement for this incarcerated population. Facilitators acknowledged the department’s shortcomings, provided candid 19. Department of Corrections and Rehabilitation, Form 22. 20. The working group, chaired by the Associate Director of the Female Offender Program, includes departmental employees from different disciplines, classifications, and institutions statewide, including chief deputy warden(s), associate warden(s), captain(s), lieutenant(s), sergeant(s), psychologist(s), and physician(s), a community resource manager, and an officer of transgender experience. Members of the group also include departmental executives and staff from the custody and health care headquarters, including the Assistant Secretary of Legislative Affairs, the Ombudsperson, the Public Information Officer, the Statewide PREA Coordinator, a correctional counselor, legal counsel, and employees from budgets and plant operations. Legislative staffers and external stakeholders also attended some of the working group meetings and consulted with departmental personnel between meetings. 21. External Stakeholders include but are not limited to American Civil Liberties Union (ACLU); Medina Orthwein LLP; Prison Law Office (PLO); Equality California; Gender- Variant Intersex Justice Project (TGIJP); and TransLatin@Coalition. Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 7 Photo 2. Transgender, nonbinary, and intersex inmate survey. Photo provided courtesy of Terry Thornton of the California Department of Corrections and Rehabilitation. answers and, when feasible, took prompt action to resolve problems. They also invited external stakeholders to introduce themselves and the services they provide, respond to questions, speak privately with incarcerated individuals, and share their contact information for future correspondence. We also observed the department’s new Training-for-Trainers curriculum, called Working Successfully With Transgender, Intersex, and Nonbinary Inmates. During this time, the OIG engaged in ongoing dialogue with departmental representatives regarding the department’s past, present, and planned efforts to improve the housing, services, and welfare of transgender, nonbinary, and intersex individuals. The OIG also consulted with external stakeholders to gain their perspective on the issues incarcerated transgender, nonbinary, and intersex individuals face. In this report, the OIG sheds light on the experiences of transgender, nonbinary, and intersex individuals while incarcerated, conveys the concerns and advocacy of external stakeholders, and outlines the department’s progress in addressing the varied and complex issues facing incarcerated transgender, nonbinary, and intersex individuals. We also make recommendations to the department to improve conditions of confinement for this incarcerated population. Office of the Inspector General, State of California Return to Contents 8 | Special Report Figure 1. Activities of the Transgender Housing and Search Working Group Between January 2019 and February 2020 2019 Feb. 21 Working Group Jan. 17 Meeting (met Apr. 4 May 2 Jun. 13 Working Group with incarcerated Working Group Working Group Working Group Meeting individuals at MCSP) Meeting Meeting Meeting January February March April May June July Feb. 7 Working Group Mar. 7 Apr. 18 May 16 Jul. 11 Meeting Working Group Working Group Working Group Working Group Meeting Meeting Meeting Meeting Institutions Time line continues on the following page. CCWF: Central California Women’s Facility KVSP: Kern Valley State Prison CHCF: California Health Care Facility, Stockton MCSP: Mule Creek State Prison CIM: California Institution for Men NKSP: North Kern State Prison CIW: California Institution for Women RJD: Richard J. Donovan Correctional Facility CMC: California Men’s Colony SAC: California State Prison, Sacramento CMF: California Medical Facility SATF: Substance Abuse Treatment Facility COR: California State Prison, Corcoran SQ: San Quentin State Prison DVI: Deuel Vocational Institution SVSP: Salinas Valley State Prison FWF: Folsom Women’s Facility WSP: Wasco State Prison * Survey refers to the Transgender, Nonbinary, and Intersex Survey through which the department queried the incarcerated population regarding housing preferences, search preferences, and other topics of concern. † Training refers to the department’s four-hour Training-for-Trainers sessions: Working Successfully With Transgender, Intersex, and Nonbinary Inmates. Source: The California Department of Corrections and Rehabilitation. Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 9 Dec. 18 Survey at KVSP and NKSP and Figure 1. Activities of the Transgender Housing and Search Training † Working Group Between January 2019 and February 2020 (continued) Dec. 12 Dec. 23 Survey at CCWF Survey at SVSP and CMC Dec. 4 Survey at Dec. 27 CHCF and DVI Survey at CIW Nov. 27 Jan. 9 Survey at FWF Working Group Meeting Time line continues from and SAC the previous page. Nov. 20 Working Group Meeting at SQ and Transgender Day of Remembrance Event 2020 Aug. 15 Working Group Oct. 17 Meeting Sep. 19 Working Nov. 6 Feb. 20 (Secretary Diaz Working Group Group Trial Survey Working Group attended) Meeting Meeting at SQ* F Tr e a b in . i 1 n 2 g Meeting August September October November December January February Sep. 5 Oct. 3 Jan. 23 Working Group Working Oct. 21 Nov. 7 Working Group Feb. 13 Meeting Group Meeting with Working Meeting Training Meeting Senator Wiener Group and Advocates Meeting at CIM and CIW Nov. 26 Survey at MCSP Dec. 28 Survey at RJD Dec. 2 Dec. 26 Survey at CMF Survey at CIM Dec. 10 Survey at SQ Dec. 19 Training Dec. 17 Survey at SATF, COR, and WSP Office of the Inspector General, State of California Return to Contents 10 | Special Report (This page left blank for reproduction purposes.) Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 11 Transgender, Nonbinary, and Intersex Individuals Reported They Are Vulnerable to Violence and Discrimination While Incarcerated Transgender individuals have suffered a history of persecution, discrimination, and violence.22 The Federal Bureau of Investigation’s “We are not treated 2018 Hate Crime Statistics indicated that 85.6 percent of hate crimes like women or men. We are treated as less than committed on the basis of gender identity were motivated by an “anti- human. Prison is a place transgender bias.”23 The same trend occurs among the incarcerated to change, and a place population, as transgender people fall victim to maltreatment, sexual to really figure yourself out and become a better assault, and murder.24 In 2018, the American Medical Association person. The way we’re issued a press release noting that transgender individuals suffer treated hinders us from disproportionately from sexual assault during incarceration. The press rehabilitation.” release cited a study of California prisons indicating “59 percent of —Incarcerated transgender prisoners experience sexual assault, versus only 4.4 of the Transgender Woman December 2019 overall prison population,” as well as another study reflecting “the proportion of transgender prisoners in California experiencing sexual assault to be as high as 75 percent.”25 The vulnerability of this population is echoed in the stories told by transgender, nonbinary, and intersex individuals during the surveys and forums we attended. 22. Crowder v. Diaz (E.D. Cal., Aug. 19, 2019, No. 2:17-CV-1657-TLN-DMC) 2019 WL 3892300; F.V. v. Barron (D. Idaho 2018) 286 F.Supp.3d 1113, citing Adkins v. City of New York (S.D.N.Y. 2015) 143 F.Supp.3d 134; Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ. (7th Cir. 2017) 858 F.3d 1034, 1051; Karnoski v. Trump (W.D. Wash. Apr. 13, 2018, No. C17-1297- MJP) 2018 WL 1784464; F.V. v. Barron (D. Idaho 2018) 286 F. Supp. 3d 1131, 45; Adkins v. City of N.Y. (S.D.N.Y. 2015) 143 F. Supp. 3d 134, 139; M.A.B. v. Bd. of Educ. (D. Md. 2018) 286 F. Supp. 3d 704, 720; Bd. of Educ. of the Highland Local Sch. Dist. v. U.S. Dep’t of Educ. (S.D. Ohio 2016) 208 F.Supp.3d 850, 874; Evancho v. Pine-Richland Sch. Dist. (W.D.Pa. 2017) 237 F.Supp.3d 267, 288; Grimm v. Gloucester Cty. Sch. Bd. (E.D. Va. 2018) 302 F. Supp. 3d 730, 749. 23. United States Department of Justice, Federal Bureau of Investigation: Hate Crime Statistics (2018), https://ucr.fbi.gov/hate-crime/2018/topic-pages/victims. 24. Prison Rape Elimination Act; “Classification and Housing of Transgender Inmates in American Prisons,” Harvard Law Review, 127, no. 6 (2014), 1746; Sharon Dolovich, “Cruelty, Prison Conditions, and the Eighth Amendment,” New York University Law Review, 84, no. 4 (2009): 881, 886–889; Gabriel Arkles, “Safety and Solidarity Across Gender Lines: Rethinking Segregation of Transgender People in Detention,” Temple Political & Civil Rights Law Review, 18, no. 2 (2009), 515, 537–540. 25. American Medical Association, Press Release: “AMA Urges Appropriate Placement of Transgender Prisoners” (June 11, 2018), https://www.ama-assn.org/press-center/press- releases/ama-urges-appropriate-placement-transgender-prisoners. Office of the Inspector General, State of California Return to Contents 12 | Special Report Figure 2. Identities of Transgender, Nonbinary, and Intersex Inmate Survey Participants Between November 2019 and January 2020 Do you identify as transgender, nonbinary, or intersex? Institutions for Women Institutions for Men Transgender Man 40% Transgender Woman 84% Nonbinary 24% Nonbinary 8% No 20% Transgender Man 3% Transgender Woman 11% No 3% Intersex 5% Intersex 2% N = 168 Participants * N = 441 Participants * Glossary Transgender Man: A person who was assigned female at birth, but identifies and expresses their gender as male. Transgender Woman: A person who was assigned male at birth, but identifies and expresses their gender as female. Nonbinary: Relating to or being a person who identifies with or expresses a gender identity that is neither entirely male nor entirely female. Intersex: Having both male and female gonadal tissue in one individual or of having the gonads of one sex and external genitalia that is of the other sex or is ambiguous. No: Does not identify as transgender, nonbinary, or intersex. * These figures represent the total number of individuals who participated in the Transgender, Nonbinary, and Intersex Inmate Survey at institutions for women and at institutions for men. Source: The California Department of Corrections and Rehabilitation’s analysis of the Transgender, Nonbinary, and Intersex Inmate Survey results between November 2019 and January 2020. Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 13 Incarcerated Transgender, Nonbinary, and Intersex Individuals Described a Culture of Disrespect by Both Staff and Other Incarcerated Individuals Departmental policy acknowledges the role of “language used by staff “Where are all my toward inmates” in “creating a culture of safety and respect that can bitches at?” impact the emotional well-being of inmates, including transgender —Incarcerated Individual inmates.”26 It provides instruction on acceptable methods for Quoting an Officer December 2020 communicating with transgender individuals, such as using gender- neutral language and the correct pronouns. Departmental policy makes clear that using “derogatory remarks, insults, and epithets,” and “repeatedly calling a transgender inmate by the wrong pronouns or name, after the transgender inmate has provided notice of his or her gender identity to staff” is a violation of departmental policy.27 Nevertheless, some staff are hostile, discourteous, unprofessional, and insensitive toward transgender, nonbinary, and intersex individuals, generating a culture of disrespect. At the forums the OIG attended, incarcerated individuals explained that staff use epithets such as “faggot” and “fag,” and other derogatory remarks toward transgender, nonbinary, and intersex people. One individual recounted a female officer asking “do you have your dick and balls tied to your back?” Another individual claimed that a male officer said “I have a real one.” Another individual reported that while identifying transgender people at a male institution, an officer called out, “Where are all my bitches at?” Incarcerated individuals shared stories of staff who intentionally misgender them by using the wrong pronouns. For example, some staff refer to transgender male individuals as “she” or “her.” Officers also refer to individuals using first names that conflict with individuals’ gender identity. Incarcerated individuals expressed less concern about the officers who tried to use correct pronouns, and sometimes made mistakes, but were troubled by officers who repeatedly, and appeared to purposefully, use the wrong pronouns. The intolerance endured by transgender, nonbinary, and intersex individuals extends even further than verbal abuse. Two individuals reported that when the department transported them from an institution designated for transgender individuals to a non-designated institution, staff at the non-designated institution refused to accept them into the institution, grant them access to the bathroom, or allow them to exit the transportation vehicle. Instead, staff at the non-designated institution had them transported to another institution, nearly 380 miles away. 26. DOM, Section 54040.4.1. 27. Ibid. Office of the Inspector General, State of California Return to Contents 14 | Special Report Incarcerated transgender, nonbinary, and intersex individuals also described situations in which staff drew unwelcome attention to them. According to these individuals, the department’s practice of scheduling hormone therapy and testing for transgender, nonbinary, and intersex patients on the same day and time each week draws unwelcome attention to them because it causes them to gather in waiting areas at the same time and become easily identifiable to other incarcerated individuals. The OIG observed similar attention being called to this population before a survey and forum at one of the institutions. A departmental staff member announced over the public address system for “all transgender inmates” to go to the meeting, which unnecessarily caused those who left to attend the survey and forum to be singled out and identifiable to other people. While changes to departmental policies and practices can mitigate the aforementioned issues, some forms of unwelcome attention “The C/Os single out all can only be prevented through a cultural shift within the department. transgender, intersex, At one of the forums, an individual described that an officer displayed and nonbinary inmate[s], an old picture of the individual and called upon others to, “Look, this is for no other reason than to make fun of us what [the individual] looked like before.” because of our gender. It’s not right and need Without minimizing the above-referenced experiences and concerns, it is to be changes made to the treatment of this important to note that a few transgender individuals acknowledged the community.” department’s effort to improve its culture and expressed that certain staff —Incarcerated Nonbinary understand and support transgender, nonbinary, and intersex individuals. Individual Most Often Identifies as Individuals at one institution stated, “It is much better than 5 years ago,” Nonbinary “It’s getting better, “It’s all going in the right direction,” and “There are November 2019 good staff, including [the investigative services unit].” Incarcerated Transgender, Nonbinary, and Intersex Individuals Asserted That Staff Conduct Unprofessional Searches The department has an obligation to comply with Federal and State laws, including the Federal Prison Rape Elimination Act (PREA), which provides that searches be conducted in the least intrusive manner consistent with security needs. Because of this, departmental policy requires that routine unclothed body searches “be conducted in a safe manner and in an area that allows the inmate to preserve some measure of dignity and self-respect.”28 However, transgender, nonbinary, and intersex individuals at the forums reported that officers target them with increased searches, deny them privacy during unclothed body searches, and make vulgar comments during the searches. “Fuck that, bitch— At one institution, incarcerated individuals reported that officers bend over.” intentionally strip search them in front of others, including routine strip —Incarcerated searches conducted during work exchange. When individuals ask for Individual privacy, officers respond with comments such as “Fuck that, bitch—bend Quoting an Officer over.” One individual indicated that a female officer grabbed the December 2020 individual’s breast during a search rather than using the back of her hand 28. Code of Federal Regulations, Sections 115.15, 115.115, 115.215, and 115.315. Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 15 as required by departmental policy. When the individual complained, the officer replied, “Don’t worry; it’s not a big deal. I have those, too.” An individual from another institution described an incident wherein the institution terminated the individual’s job assignment and issued a negative write-up because the individual refused to be strip searched in front of other people during work exchange. Although most transgender, nonbinary, and intersex individuals described unprofessional searches, one group shared the belief that officers would honor requests to be searched in a private setting. Figure 3. Search Preferences of Transgender, Nonbinary, and Intersex Inmate Survey Participants Between November 2019 and January 2020 How would you prefer to be searched: with the male search policy or the female search policy? Institutions for Women Institutions for Men Female Search Policy 59% Female Search Policy 70% No Preference 26% No Preference 24% Male Search Policy 14% Male Search Policy 5% No Response 1% No Response 1% N = 168 Participants * N = 441 Participants * Glossary Male Search Policy: Clothed body searches can be conducted by men or women, unclothed searches can only be conducted by men. Female Search Policy: Both clothed and unclothed body searches can only be conducted by women. * These figures represent the total number of individuals who participated in the Transgender, Nonbinary, and Intersex Inmate Survey at institutions for women and at institutions for men. Source: The California Department of Corrections and Rehabilitation’s analysis of the Transgender, Nonbinary, and Intersex Inmate Survey results between November 2019 and January 2020. Office of the Inspector General, State of California Return to Contents 16 | Special Report Incarcerated Transgender, Nonbinary, and Intersex Individuals Expressed That the Department Does Not Provide Sufficient Privacy When They are Unclothed The Fourth Amendment provides incarcerated individuals with a limited right to privacy, subject to limitation to maintain institutional security.29 “This is not asked [in this survey], Both PREA and departmental policy are designed to limit cross-gender privacy partitions viewing when individuals shower, use the bathroom, and change clothes, that adequately keep others from seeing our to exigent circumstances or when viewing is incidental to routine cell genitalia and bodies checks.30 PREA also provides that transgender individuals be allowed to like we shower at as shower separately.31 Except in circumstances in which safety and security the so called privacy partitions are a joke. would be compromised, modesty screens (also referred to as privacy You can walk up to curtains) are placed strategically to prevent incidental viewing.32 a shower and see everyones bodies, i.e., genitalia. I get Notwithstanding these policies, incarcerated individuals claimed the harassed on a daily department denies them the basic self-respect and personal dignity of basis. Guys walking by shielding their unclothed body from strangers of the opposite sex. To the showers looking in it causes problems. transgender, nonbinary, and intersex individuals, privacy is not only self- I’m 6’5” tall and the respect and personal dignity, but safety. These individuals voiced concern privacy partitions are that the department does not provide them with sufficient privacy to take a joke. These showers especially in C-15, showers, use the bathroom, or change clothes. They reported that some need to be fixed and institutions and facilities have privacy curtains while others do not; some or tall movable privacy curtains need to be have privacy curtains that are broken or altered; and others have curtains made and brought that are too small. They also reported that some officers do not provide into all the housing them with separate shower times, thereby increasing the likelihood of units.” cross-gender viewing. For this reason, some transgender, nonbinary, —Incarcerated Transgender Woman and intersex individuals forego showering altogether and instead take a November 2019 “bird bath.”33 Individuals housed in dormitory settings reported they do not have the same privacy to change clothes as individuals housed in a single or double cell. Those housed in a dormitory “have an audience” of other incarcerated individuals who stare at them and “play with themselves.” One group of incarcerated individuals indicated that officers in one facility afforded separate shower times for transgender, nonbinary, and intersex people, which provided them with more privacy. 29. Bull v. City and County of San Francisco, supra, 595 F.3d at p. 972; Michenfelder v. Sumner, supra, at p. 333.; Bell v. Wolfish, supra, 441 U.S. 520. 30. Code of Federal Regulations, Section 115.15, subdivision (d); DOM, Section 54040.4. 31. Code of Federal Regulations, Section 115.42, subdivision (f). 32. DOM, Section 54040.4. 33. A bird bath is similar to sponge bath; it constitutes bathing using water from an in-cell sink. Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 17 Incarcerated Transgender, Nonbinary, and Intersex Individuals Expressed That Reporting Sexual Harassment Is Futile According to the Presidential Memorandum Implementing the Prison Rape Elimination Act, “the success of PREA in combating sexual abuse in confinement facilities” hinges on “effective agency and facility leadership and the development of an agency culture that prioritizes efforts to combat sexual abuse.”34 The department has made efforts to implement PREA through its policy and expectations for staff. Departmental policy requires that staff report any information indicating an incarcerated individual is being, or has been the victim of sexual violence, sexual misconduct, or sexual harassment from departmental staff, other incarcerated individuals, or both. Staff are also expected to show sensitivity and maintain professional behavior during interactions with victims.35 Despite the department’s efforts to effectively implement PREA, incarcerated transgender, nonbinary, and intersex individuals expressed that PREA “is not effective at all.” Several individuals shared accounts of being victims of sexual violence while incarcerated; some claimed they previously reported the incidents to staff, while others indicated they were reporting the incident for the first time.36 Incarcerated transgender, nonbinary, and intersex individuals are reluctant to file complaints of sexual assault or harassment because staff do not take their complaints seriously, do not conduct interviews in private settings, and ridicule incarcerated individuals for complaining. Incarcerated individuals also relayed that staff retaliate against them when they complain—officers automatically place transgender, nonbinary, and intersex complainants in administrative segregation, which results in victims losing their jobs, educational programs, rehabilitative programs, and housing assignments. At one institution, incarcerated individuals explained that officers, including those in the investigative services unit, do not take allegations of sexual assault seriously and have responded with comments, such as “I thought you liked it that way.” Individuals at the forums also indicated that incarcerated cisgender “I thought you liked it individuals as well as other gender nonconforming individuals, misuse that way.” the PREA reporting process and protections by falsely accusing — Incarcerated Individual transgender, nonbinary, and intersex individuals of sexual assault to have Quoting Officers them placed in administrative segregation, and cause the them to lose December 2020 their desired job, education, rehabilitative programs, and housing 34. Memorandum of President Implementing the Prison Rape Elimination Act (May 17, 2017), https://obamawhitehouse.archives.gov/the-press-office/2012/05/17/presidential- memorandum-implementing-prison-rape-elimination-act. 35. DOM, Section 54040.7. 36. Regardless of when the incident occurred, or whether the incarcerated person claimed to have previously reported the incident, members of the working group provided the information to the department’s Statewide Prison Rape Elimination Act Coordinator or another appropriate departmental representative who obtained the necessary information to confirm an inquiry had already been conducted or to initiate an inquiry pursuant to the department’s policies and procedures. Office of the Inspector General, State of California Return to Contents 18 | Special Report assignment. They explained that some people file false allegations against transgender, nonbinary, or intersex individuals to have them removed from a cell, room, or dorm. Figure 4. Transgender, Nonbinary, and Intersex Inmate Survey Participants’ Responses Regarding Safety in Reporting Discrimination, Harassment, and Violence Between November 2019 and January 2020 Do you believe you can safely report discrimination, harassment, or violence committed based on your status as a transgender, nonbinary, or intersex person? Institutions for Women Institutions for Men Yes 59% No 52% No 39% Yes 46% No Response 2% No Response 2% N = 168 Participants * N = 441 Participants * * These figures represent the total number of individuals who participated in the Transgender, Nonbinary, and Intersex Inmate Survey at institutions for women and at institutions for men. Source: The California Department of Corrections and Rehabilitation’s analysis of the Transgender, Nonbinary, and Intersex Inmate Survey results between November 2019 and January 2020. “Staff don’t take your [PREA] cases serious[ly] and refuse you to make a complaint and staff harasses you and belittle you for alerting them, because of your status being transgender.” — Incarcerated Transgender Woman November 2019 Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 19 Incarcerated Transgender, Nonbinary, and Intersex Individuals Reported They Are at Risk of Violence Due to Unsafe Housing and the Department Does Not Respond Adequately to Their Concerns Housing transgender, nonbinary, and intersex individuals with compatible cellmates is critical for ensuring the safety of those individuals while incarcerated. When the department overlooks incarcerated individuals’ safety concerns or concerns regarding incompatibility with a cellmate, it puts these individuals’ lives in jeopardy. On October 31, 2013, officers discovered a dead transgender woman in her cell, covered in a blanket with cloth ligatures looped around her neck three times, and both hands bound together and tied to her bunk. She died at the hands of her cellmate, hours after they became cellmates. Upon inspecting the cell, an investigator found two writings from the deceased: one indicating she was worried her new cellmate would rape her, and the other conveying a grim forecast—“Never mind tired of being abused better off dead.” In December 2019, a judge sentenced the woman’s cellmate to death. The cellmate had reportedly told officers he would kill the transgender woman if he were forced to share a cell with her.37 In addition, the cellmate told the trial judge that he had previously attacked a gay cellmate, claiming “I had a restriction not to be housed with a [gay expletive].”38 During the forums we attended, incarcerated individuals reported the department does not provide them with safe housing or adequately respond to their safety concerns. They recounted situations in which officers dismissed their safety concerns and placed them in unsafe housing environments with incompatible cellmates. One individual claimed that, at the behest of officers, multiple incarcerated individuals attacked her from behind on an exercise yard, which resulted in her hospitalization and confinement to a wheelchair. Because she could not identify her attackers, officers ordered her to return to the same exercise yard where the attack occurred. When she refused to return to the exercise yard, officers placed her in administrative segregation. 37. Miranda Leitsinger, “Transgender Prisoners Say They ‘Never Feel Safe,’ Could a Proposed Law Help?,” KQED (January 8, 2020), https://www.kqed.org/news/11794221/could- changing-how-transgender-inmates-are-housed-make-prison-safer-for-them. 38. Tim Fitzsimons, “Man sentenced to death for killing transgender cellmate,” NBC News (December 6, 2019), https://www.nbcnews.com/feature/nbc-out/man-sentenced-death- killing-transgender-cellmate-n1097161. Office of the Inspector General, State of California Return to Contents 20 | Special Report Another individual stated that officers housed her in a six-person room with “two serial rapists” who stood near her bunk at night and also watched her use the bathroom. Given her petite stature and the warnings she received from other incarcerated individuals regarding the cellmates’ predatory nature, the individual felt unsafe and requested a room change. However, an officer denied her request to move, citing she had a physician’s note for a lower bunk and had two options: “Go back to your cell, or go to the hole [a reference to administrative segregation].” Officers eventually permitted the individual to move to a different room after she abandoned her documented medical needs for her personal safety. Figure 5. Housing Preferences of Transgender, Nonbinary, and Intersex Inmate Survey Participants Between November 2019 and January 2020 Would you currently prefer to be housed at a male or female institution? Institutions for Women Institutions for Men Female Institution 70% Female Institution 41% Undecided 14% Male Institution 30% Male Institution 10% Undecided 20% No Preference 5% No Preference 9% No Response 1% N = 168 Participants * N = 441 Participants * * These figures represent the total number of individuals who participated in the Transgender, Nonbinary, and Intersex Inmate Survey at institutions for women and at institutions for men. Source: The California Department of Corrections and Rehabilitation’s analysis of the Transgender, Nonbinary, and Intersex Inmate Survey results between November 2019 and January 2020. Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 21 Other incarcerated individuals reported that officers dismiss their safety concerns and requests for safer housing with comments such as “Fuck or fight,” “Fucking deal with it,” and “This is a man’s prison—deal with it like a man.” They explained that, regardless of their safety concerns, refusing to be housed according to officers’ determinations subjects them to disciplinary action, including being placed in administrative segregation. “This is a man’s prison—deal with it like a man.” — Incarcerated Individual Quoting Officers December 2020 Incarcerated individuals at the forums also explained they are often denied access to the grievance process, and if they do file grievances, the complaint is lost or discarded. As mentioned earlier, these individuals expressed that officers retaliate against those who file grievances. One individual reported that, after she filed a complaint against an officer, she was moved into a cell with “a homophobic inmate.” In contrast to the complaints shared nearly statewide, incarcerated individuals at one institution expressed that some officers would honor a request to move into safer housing. “Cellmates are a big issue. Some people are not compatible with transgenders and that is creating a hostile environment when the cellmate is forced just because a bunk is available and the institution needs to house an inmate. CDCR already allows inmates to choose housing according to race, gang affiliation, etc., but not gender identification.” —Incarcerated Nonbinary Individual November 2019 Office of the Inspector General, State of California Return to Contents 22 | Special Report Incarcerated Transgender, Nonbinary, and Intersex Individuals Reported They Face Discrimination in Access to Programs and Services By listening to the stories incarcerated individuals shared at the forums, we found that the discrimination faced by transgender, nonbinary, “It would be great to and intersex individuals is far-reaching, and extends to all aspects have a support group of daily life. Bias against the transgender, nonbinary, and intersex within each institution where we could gather incarcerated population not only results in hostile and unsafe conditions (like and AA or NA of confinement, but also in inequitable access to essential services type situation but just and programs. us) to discuss or get guidance from others who[se] experiences are like ours.” Incarcerated Transgender, Nonbinary, and Intersex Individuals —Incarcerated Described Discrimination in Vocational Training, Job Assignments, Intersex and Other Activities Individual Who Most Often Identifies Within the department, incarcerated individuals are assigned a full day as Male November 2019 of work, education, or other rehabilitative programs, or a combination of work, education, and rehabilitative programs.39 Vocational training and job assignments provide these individuals with an opportunity to increase their employment marketability upon release.40 Job assignments also provide them with income for purchasing approved items and paying restitution.41 During the forums, incarcerated individuals indicated that departmental staff deny them access to desirable job assignments because of their transgender, nonbinary, or intersex status. For example, they explained that staff deny their requests to work as porters or in the culinary. They also reported that staff have told them that other incarcerated individuals do not want them serving food because of their perceived sexuality. Incarcerated individuals also complained that the department’s vocational training reflects outdated gender stereotypes in that it only provides vocational training that aligns with traditional gender roles. For example, at institutions for men the department offers vocational training or certificates in plumbing and welding, but not cosmetology, which the department offers at institutions for women. Incarcerated transgender, nonbinary, and intersex individuals also explained that the department’s religious leaders do not always accept them into faith-based programs or services. One individual described 39. California Code of Regulations, Title 15, Section 3040. 40. California’s In-Prison Vocation Education, An Analysis of Program and Alignment to Labor Markets (2014). The department’s career technical programs and certificates may be found at https://www.cdcr.ca.gov/rehabilitation/cte/ and https://www.calpia.ca.gov/ offender-development/accredited-certification-programs/. 41. California Code of Regulations, Title 15, Section 3041.2. Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 23 that a reverend removed her from the choir after learning she was a transgender individual. The individual filed a successful appeal with the department. However, before the individual was allowed back into the choir, the reverend disbanded the choir entirely. Incarcerated individuals also expressed that the department lacks sufficient support groups for incarcerated transgender, nonbinary, and intersex individuals. To the extent such groups exist, these individuals believe that officers allow agitators into the support groups with the intention of disrupting the meetings. Incarcerated Transgender, Nonbinary, and Intersex Individuals Described Discrimination in Access to Clothing and Property Items That Align With Their Gender Identity and Expression Clothing The department is required to provide clothing to the incarcerated population.42 However, incarcerated transgender, nonbinary, and intersex individuals expressed that institutions, including those designated for transgender individuals, lack a sufficient inventory of clothing, such “I would like to bring as underwear congruent with individuals’ gender identities. They also up the clothes in prison we are judge[d] & explained that some staff are confused about when, where, or how forced to wear & look individuals may wear certain articles of department-authorized clothing. like a man. I would love it if us transgenders to be able to wear what Individuals at an institution for women explained that although the we want to make us department issues boxer shorts to transgender men, officers only feel more like a woman issue women’s underwear to transgender men. Because incarcerated & less like a man. Also I would like to mention individuals are required to wear underwear to legal visits, transgender how the C.O.s talk to men must wear women’s underwear if they want to visit with their us not all but there’s a large amount of attorney. One individual expressed that because he refuses to wear officers that mistreat us women’s underwear, officers deny him legal visits. as transwomen.” —Incarcerated Incarcerated individuals also explained that officers are confused about Transgender Woman November 2019 when, where, or how the incarcerated population may wear certain articles of clothing. For example, on exercise yards at institutions for men, some officers require women to wear a shirt over their sports bra while others permit them to wear a sports bra without a shirt. An associate warden at an institution for men highlighted this confusion during one of our visits at an institution for men when he told us he corrected an officer who required a transgender woman to wear a shirt over her bra while on the exercise yard. The associate warden said he told the officer that while transgender women are on the exercise yard, they are not required to wear clothing over their bras. However, the associate warden later found the officer was correct—both transgender women and cisgender women are required to wear clothing over their sports 42. California Penal Code, Section 2084; California Code of Regulations, Title 5, Sections 3030, 3031, and 3032. Office of the Inspector General, State of California Return to Contents 24 | Special Report bras while on the exercise yard. The associate director corrected the associate warden and explained that at institutions for women, individuals must wear clothing over their sports bras while on the exercise yard and the same rule applies at institutions for men. During one survey, an incarcerated transgender woman housed at an institution that is not designated for transgender people wrote the following: Even though [this institution] is not a transgender friendly facility they have done a good job making sure I am all right, notifying me of my rights as a transgender. They even got me female clothing from the womens prison on the same day that we gave them my sizes. They made me feel comfortable here. Canteen At each institution, the department maintains canteens where incarcerated individuals can purchase toiletries, candy, and other sundry items.43 At the 14 designated transgender institutions, each institution’s canteen must stock seven cosmetic or hygiene items for transgender individuals. To determine what items it would stock, the department polled incarcerated transgender individuals statewide. To optimize shelf space, the department selected the most popular items and mandated that all canteens at the 14 designated institutions carry those items. During the forums, incarcerated individuals requested the department increase the type and variety of items that align with their gender identity and expression. For example, if the canteen at an institution for men sells combs, it should also sell hair brushes and more than one type of brush for women’s hair; if a canteen sells foundation makeup, it should also sell more than one color of foundation. In 2019, the department initiated a new program to improve incarcerated transgender individuals’ access to authorized state- issued clothing, canteen items, and packages from approved vendors.44 An individual may request a Transgender Access Card (access card; see Photo 3, left), which includes the individual’s name, CDCR number, gender identity, pronoun, and honorific. An access 43. California Penal Code, Section 5005. 44. California Department of Corrections: Transgender Access Card for Transgender Inmates at Hub, Memorandum (June 19, 2019). Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 25 card is not an identification card and incarcerated individuals are not required to possess the access card on their person at all times. However, the access card is used to request, purchase, or receive items authorized only for incarcerated transgender, nonbinary, and intersex individuals. Figure 6. Gender Identities of Transgender, Nonbinary, and Intersex Inmate Survey Participants Between November 2019 and January 2020 What gender identity do you most often use to describe yourself? Institutions for Women Institutions for Men Male 46% Female 86% Nonbinary20% Nonbinary 7% Female20% Other 4% No Response10% Male 2% Other 4% No Response 1% N = 168 Participants * N = 441 Participants * Glossary Nonbinary: Relating to or being a person who identifies with or expresses a gender identity that is neither entirely male nor entirely female. Other: Any gender identity that does not fall into the category of male, female, or nonbinary. * These figures represent the total number of individuals who participated in the Transgender, Nonbinary, and Intersex Inmate Survey at institutions for women and at institutions for men. Source: The California Department of Corrections and Rehabilitation’s analysis of the Transgender, Nonbinary, and Intersex Inmate Survey results between November 2019 and January 2020. Office of the Inspector General, State of California Return to Contents 26 | Special Report During the forums, we learned that some institutions had not issued access cards or notified incarcerated individuals about the access card program. At one institution, transgender, nonbinary, and intersex individuals shared that the institution did not issue the access cards until the day before the working group’s arrival to administer the survey. Individuals at another institution indicated that officers exhibited a dismissive attitude toward the access cards. For example, when they presented the access card, officers responded with comments such as “It’s a male prison,” and “You’re a male in SOMS.”45 One individual reported that officers took her card during a search and did not return it to her. Despite the department’s efforts to improve access to property aligning with an individual’s gender identity and expression, and despite the positive comments some incarcerated individuals voiced about these efforts, most expressed disappointment with the limited inventory and lack of access to preferred items. To increase transgender, nonbinary, and intersex individuals’ access to preferred items, the department should devise ways to optimize storage space in the canteens. Incarcerated Transgender, Nonbinary, and Intersex Individuals Indicated They Face Discrimination Because They Lack a Voice in Inmate Advisory Councils According to regulations, wardens are required to establish an inmate “At this prison there is advisory council that is representative of a facility’s ethnic groups.46 no MAC represent[ation Council representation must include all ethnic segments of the general for] the women here incarcerated population and of incarcerated individuals within a when th[ere] a[re] problem[s].* designated representation area or activity.47 The incarcerated population —Incarcerated at each institution selects council members to act in an advisory capacity Transgender Woman to the warden in matters of common interest and concern.48 When November 2019 subcommittees of the council are established to represent specialized * Inmate Advisory Councils segments of the incarcerated population, only those within the particular (IAC) are also referred to as the Men’s Advisory Council area or segment may participate in the election.49 Departmental policy (MAC) and Women’s Advisory Council (WAC). does not require that wardens designate a position for a transgender representative or create a transgender subcommittee. During the forums, incarcerated individuals at some institutions explained that councils do not have a transgender representative and the bylaws do not require the council to have a transgender, nonbinary, or intersex representative or subcommittee. These individuals expressed a lack of confidence that cisgender individuals would, or even could, adequately represent the transgender, nonbinary, and intersex 45. SOMS refers to Strategic Offender Management System. 46. California Code of Regulations, Title 15, Section 3230. 47. DOM, Section 53120.4. 48. DOM, Section 53120.1. 49. DOM, Section 53120.5. Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 27 incarcerated population during council meetings or in its interactions with the department’s administration. These individuals want a representative from the transgender, nonbinary, and intersex population on the councils to allow their concerns to be heard and to improve communication with the administration. Office of the Inspector General, State of California Return to Contents 28 | Special Report Transgender, Nonbinary, and Intersex Incarcerated Individuals Expressed Frustration With the Department’s Provision of Health Care “Are they normal, or like you?” —Incarcerated Individual Quoting a Health Care Provider Adequate medical and mental health services is critical for all incarcerated individuals, including transgender, nonbinary, and intersex individuals. Some transgender individuals suffer from gender dysphoria because their gender identity does not align with their assigned sex at birth.50 Transgender people often undergo a process known as transition, which is a period of time in which they transition from the gender associated with their assigned sex at birth to the gender with which they identify. For some, transition is limited to social changes, such as telling family, friends, and coworkers; using a different name and new pronouns; dressing differently; and, changing one’s name or sex, or both, on legal documents.51 For others, transition can include medical treatments, such as hormone therapy and gender affirming surgery.52 In February 2020, California Correctional Health Care Services revised and updated its transgender care guide. The care guide provides mental health and medical providers with an algorithm for patients seeking care. It delineates the process for assessing transgender patients for gender dysphoria as well as prescribing hormones to patients with gender dysphoria in a way that ensures that sex hormone levels are safe and appropriate for the patient’s gender.53 Using this guide, the department carefully considers an individual’s request for gender affirming surgery on a case-by-case basis, taking the person’s medical and mental health history and current medical and mental health conditions into account. However, during the forums the OIG attended, transgender, nonbinary, and intersex individuals shared their discontent with providers’ medical acumen and the quality and availability of medical care and mental health services the department provides. They explained that many of the department’s health care providers are insensitive about the 50. World Professional Association for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (7th Version, 2012), p. 5; American Medical Association: Resolution 122 (2008). 51. World Professional Association for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (7th Version, 2012), p. 16; GLAAD Media Reference Guide, 10th Edition (October 2016). 52. World Professional Association for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (7th Version, 2012), p. 5. 53. CCHCS/DHCS Care Guide: Transgender (February 2020), https://cchcs.ca.gov/wp- content/uploads/sites/60/CG/Transgender-CG.pdf. Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 29 medical, psychological, and social issues facing incarcerated transgender, nonbinary, and intersex individuals. In particular, these individuals reported that hormone regimens are changed when they transfer interdepartmentally. They also expressed frustration regarding the department’s delay in reviewing requests for gender affirming surgery and its ambiguity in denying those requests. At the forums, incarcerated individuals shared that some providers do not treat them professionally. For example, one individual reported that during an exam, a health care provider asked if the individual had any siblings and “Are they normal, or like you?” Incarcerated individuals also expressed suspicion that the department approves or denies hormone therapy based on positive or negative behavior—not on medical need. Transgender, nonbinary, and intersex individuals at the forums also reported the department does not provide them with individualized treatment, access to endocrinologists, or information about the efficacy and side effects of hormone therapy. At one institution, transgender, nonbinary, and intersex individuals reported that the institution did not have an endocrinologist or offer telemedicine, leaving these patients without access to vital appointments. Statewide, incarcerated individuals expressed frustration that the department does not provide information on the process for requesting and receiving gender affirming surgery and does not respond timely to requests for surgery. They shared the perception that it is difficult to obtain the department’s approval for surgery and when the department denies a request, it offers no explanation for the denial. The department acknowledges the need to improve its process and communication with incarcerated individuals and is currently revising its guidelines for reviewing those requests. “We are being denied our requests to be seen by an endocrinologist here at [this institution]. The medical staff here does not manage our hormones properly. I have been told that an estrodial level of 39 is in the therapeutic range. My levels are so low my transition has stopped. We are also all denied our requests for gender affirmation surgery for any number of reasons such as ‘your needs are being met with current treatment’.” —Incarcerated Transgender Woman December 2019 Office of the Inspector General, State of California Return to Contents 30 | Special Report (This page left blank for reproduction purposes.) Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 31 External Stakeholders Echoed the Concerns of Transgender, Nonbinary, and Intersex Incarcerated Individuals and Advocated on Their Behalf External stakeholders amplify the voices of incarcerated transgender, nonbinary, and intersex individuals; provide them with education and services; and advocate on their behalf through open dialogue with the department, proposed legislation, and representation during litigation. These stakeholders were present during the forums and during some of the department’s working group sessions. In completing this report, the OIG engaged with external stakeholders outside of the forums and working group. In this section, we delineate the concerns these stakeholders raised regarding the incarcerated transgender, nonbinary, and intersex population. External Stakeholders Reiterated Concerns That Transgender, Nonbinary, and Intersex Incarcerated Individuals Are Afraid to Report Sexual Assault Because Doing So May Subject Them to Being Housed in Prolonged Isolation External stakeholders echoed the concerns incarcerated transgender, nonbinary, and intersex individuals raised about reporting sexual assault and harassment committed by both incarcerated individuals and departmental staff, and stressed that these individuals are housed in prolonged isolation as a result of reporting PREA-related incidents. External stakeholders were aware of incarcerated individuals’ fears that reporting sexual assault and harassment would subject them to misguided blame, retaliation, and coercion. They expressed that victims do not report sexual assault because they believe they would be blamed for the assault. Victims also fear that officers would share their complaints with other incarcerated individuals, thereby subjecting them to victimization and to being called a snitch. Incarcerated individuals also fear coercion, retaliation, and intimidation from officers in the form of false rules violations, excessive or humiliating searches, or unjustified seizures of personal property. The stakeholders explained that the inherent power and authority dynamic officers have over incarcerated individuals discourages these individuals from reporting sexual assault and harassment committed by officers or other staff. Office of the Inspector General, State of California Return to Contents 32 | Special Report External stakeholders suggested that the department violates PREA by placing victims in prolonged isolation. Pursuant to PREA, “Inmates at high risk for sexual victimization shall not be placed in involuntary segregated housing unless an assessment of all available alternatives has been made, and a determination has been made that there is no available alternative means of separation from likely abusers.” PREA also provides, “If a facility cannot conduct such an assessment immediately, the facility may hold the individual in involuntary segregated housing for less than 24 hours while completing the assessment.” Nevertheless, external stakeholders reiterated incarcerated individuals’ fears that reporting sexual assault may lead to being placed in prolonged isolation. They stressed that the department continues to impermissibly house transgender and gender nonconforming individuals in isolation for prolonged periods of time, purportedly for these individuals’ own protection, and not for disciplinary reasons. External stakeholders stated their belief that even if safety is the true purpose for placing transgender and gender nonconforming individuals in administrative segregation, these individuals are denied access to rehabilitative programs, education, work, hormone treatment, and opportunities to earn credits to reduce their sentence during those periods of isolation. In addition, external stakeholders reasoned that isolation has an injurious effect on an individual’s psychological and physical well-being. Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 33 External Stakeholders Reiterated That Incarcerated Transgender, Nonbinary, and Intersex Individuals Lack Access to Services External stakeholders echoed concerns incarcerated transgender, nonbinary, and intersex individuals raised regarding access to services. They expressed concern regarding insufficient access to clothing and personal items as well as the department’s provision of health care. External stakeholders raised two issues regarding the provision of clothing and personal items for incarcerated transgender, nonbinary, and intersex individuals. First, they contended the department violates the Quine settlement by not allowing the incarcerated transgender, nonbinary, and intersex community consistent access to gender appropriate personal care items, such as muumuus, boxers, and eyeliner.54 Second, while stakeholders acknowledge that the Quine settlement is limited to designated transgender institutions, they are concerned the department does not extend its benefits to all transgender and gender nonconforming individuals. External stakeholders recommended that the department make these items, and more, available at every institution— not just institutions designated for transgender individuals. External stakeholders also expressed concern with the department’s performance in providing health care to this incarcerated population. They indicated that when incarcerated individuals on hormone therapy transfer into the department or within the department, the receiving institution often denies them hormone treatment or improperly reduces their hormone levels. The cessation or reduction of hormones can result in physical changes, causing psychological distress and physical pain. 54. Quine v. Beard (N.D. Cal., August 7, 2015, No. 3:14-CV-02726) Notice of Joint Settlement Agreement. Office of the Inspector General, State of California Return to Contents 34 | Special Report External Stakeholders Raised Additional Concerns Relating to Systemic Oversight of the Department’s Handling of Grievances External stakeholders highlighted concerns regarding the department’s mishandling of grievances. Specifically, on December 5, 2019, an external stakeholder notified the department’s Office of Legal Affairs that the department impermissibly prohibited a transgender woman housed at an institution for men from wearing a religious head covering. Even though the individual held a religious belief that she must cover her head, the department denied her request to purchase three scarves at her own expense. Although the individual previously filed appeals with the department, the department denied her request at all three levels of appeal, exhausting her administrative remedies. On behalf of the individual, an external stakeholder requested that the department reconsider its denial and cited that “under Title 15, section 3213 (b), people in prison are permitted to possess any religious item listed on the Religious Personal Property Matrix, including ‘religious headgear’.” The external stakeholder noted that the department’s “appeal response denying access to the headgear runs afoul of Title 15, as well as the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. sections 2000, et seq.” Thereafter, on February 13, 2020, the department’s director of the Division of Adult Institutions issued a memorandum titled “Religious Head Gear Options,” which provided clarification that transgender women housed in institutions for men are authorized to possess and purchase female head gear pursuant to the department’s Religious Personal Property Matrix, and that transgender men housed in institutions for women are authorized to possess and purchase head gear pursuant to the same policy. Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 35 External Stakeholders Sponsored Senate Bill 132 to Improve the Lives of Incarcerated Transgender and Gender Nonconforming Individuals Senator Scott Wiener, Senator Cathleen Galgiani, and Assemblymember Mark Stone, in consultation with external stakeholders, coauthored Senate Bill 132, the Transgender Respect, Agency, and Dignity Act, which is intended to improve conditions of confinement for incarcerated transgender, nonbinary, and intersex individuals.55 If enacted, the law would address some of the concerns of external stakeholders and incarcerated transgender, nonbinary, and intersex individuals regarding respectful treatment, professional searches, and safe housing. First, if enacted, the law would require the department to ask individuals entering its custody to specify “in a private setting” their gender identity, “whether the individual identifies as transgender, nonbinary, or intersex,” and “the individual’s gender pronoun and honorific.” The law would prohibit “staff, contractors, and volunteers of the department” from “consistently fail[ing] to use the gender pronoun and honorific an individual has specified” and would also “prohibit the department from disciplining a person for refusing to answer or not disclosing complete information,” and would provide that individuals may inform staff of this information at any time.56 Second, if enacted, the law would require that individuals in the department’s custody “be housed at a correctional facility designated for men or women based on the individual’s preference.”57 Third, if enacted, the law would require that the department conduct searches on individuals “according to the search policy for their gender identity or according to the gender designation of the facility where they are housed, based on the individual’s search preference.” The bill’s current language states that “if the incarcerated individual’s preference or gender identity cannot be determined, the search shall be conducted according to the gender designation of the facility where they are housed.”58 55. Senate Bill 132 is authored by Senator Scott Wiener (D-San Francisco), coauthored by Senator Galgiani, and Assemblymember Mark Stone, and sponsored by Equality California, TransLatin@Coalition, TGI Justice Project, Transgender Law Center, American Civil Liberties Union of California, and Lambda Legal. 56. Wiener, Scott, Cathleen Galgiani, and Mark Stone. “Bill Text.” Bill Text – SB-132 Corrections., January 14, 2019: https://leginfo.legislature.ca.gov/faces/billTextClient. xhtml?bill_id=201920200SB132. 57. Ibid. 58. Ibid. Office of the Inspector General, State of California Return to Contents 36 | Special Report According to the legislation, which is pending approval as of the date of this report’s publication, if the department “has management or security concerns with an incarcerated individual’s search preference” or “preferred housing placement,” the department must “certify in writing a specific and articulable basis why the department is unable to accommodate that search or housing preference.” If enacted, the law would also require that the department provide the incarcerated individual with a “meaningful opportunity to verbally raise any objections to that denial, and have those objections documented.”59 The legislation would prohibit an individual’s housing and search preferences from being denied based on discriminatory reasons. Furthermore, if enacted, the law would require that gender nonconforming individuals’ “perception of health and safety” be “given serious consideration in any bed assignment, placement, or programming decision within the facility in which they are housed, including, but not limited to, granting single-cell status, housing the individual with another incarcerated person of their choice, or removing the individual or individuals who pose a threat from any location where they may have access to the individual who has expressed a safety concern.” The law would also provide that “if an incarcerated individual raises concerns for their health or safety at any time, their housing and placement shall be reassessed.”60 If signed into law, this legislation is scheduled to take effect on January 1, 2021. One stakeholder expressed that Senate Bill 132 is a “life saver,” and its passage would set a model for other states to “follow suit and validate the lives” of gender nonconforming individuals; another stakeholder described Senate Bill 132 as “long overdue.”61 Sponsors are hopeful that if this legislation passes, violence leveled against transgender and gender nonconforming individuals will be reduced, and a culture of respect and dignity within the department can be cultivated. 59. Ibid. 60. Ibid. 61. Senate District 11, “Senate Passes Senator Wiener’s Legislation to Ensure Incarcerated Transgender People Are Housed According to their Gender Identity” (May 23, 2019), https:// sd11.senate.ca.gov/news/20190523-senate-passes-senator-wiener%E2%80%99s-legislation- ensure-incarcerated-transgender-people-are. Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 37 Through the Working Group, the Department Took Thoughtful and Important Steps to Improve Its Policies and Practices Drawing from insights gained through the working group, the department proposed policy changes, and developed and implemented new training to address the concerns raised by the incarcerated transgender, nonbinary, and intersex population. Through these efforts, the department’s working group achieved several notable accomplishments. The group not only administered the Transgender, Nonbinary, and Intersex Inmate Survey and conducted the forums, but also made modifications to its policies and practices; proposed changes to the department’s PREA screening form; developed a gender identity questionnaire and staff script; created a new training curriculum called Working Successfully With Transgender, Intersex, and Nonbinary Inmates; provided instruction statewide on the new curriculum; and effectuated positive change in other various ways. In Response to Insights Gained Through the Surveys and Forums, the Department Proposed Modifications to Its Policies and Practices Conducting forums enabled the department to discuss topics of concern directly with the incarcerated population. Doing so helped the executive team to better understand the struggles of transgender, nonbinary, and intersex individuals and more effectively address these individuals’ concerns. The following examples demonstrate the department’s initiative in addressing some of the issues raised during the forums. Through the forums, departmental leaders were able to provide incarcerated individuals with clarifying information as well as address their concerns. For example, several incarcerated individuals expressed confusion about the process of finalizing a name change, stating it was difficult to get their name changes finalized. As a result, executive team members provided those individuals with additional information and clarification on the name-change process and requirements. When some incarcerated individuals inquired about misconduct allegations or incidents that occurred but may not have been reported, departmental executives followed up on the status of existing allegations or brought incidents to the attention of the warden so that inquiries could be opened. During one of the forums, an incarcerated individual openly expressed concern about her rapidly deteriorating mental health condition and appeared physically distraught. Immediately following the forum, a Office of the Inspector General, State of California Return to Contents 38 | Special Report departmental executive member, a working group member, and the OIG notified an associate warden, who caused a mental health provider to personally meet with and evaluate the individual before the working group left the institution that day. At an institution for women, transgender, nonbinary, and intersex individuals raised a concern about the institution’s “Golden Girls” program. While the program allowed specific privileges beginning at the age of 55, access to those privileges was contingent upon individuals being identified as a “Golden Girl” on their department identification card—regardless of whether they identified as female. One individual noted that even though he would be entitled to the program the following week, on his 55th birthday, he refused to be identified as a “girl.” His refusal to accept the new identification card would deny him access to the program’s benefits. Following the forums, and before leaving the institution, executives raised the issue with the warden. By the following month, the warden renamed the program as the “Golden Program,” revised the institution’s applicable local operating procedures, and began issuing new identification cards.62 Incarcerated individuals appreciated the diversity of departmental staff members who attended the forums, the presence of external stakeholders and the OIG, and the open dialogue and prompt resolution of certain issues. During the forums, they repeatedly expressed gratitude to the department for its commitment to improving the lives of transgender, nonbinary, and intersex individuals. The department’s actions were so well received that these individuals requested the department administer similar surveys and forums in the future. ”Thank you for coming today and caring about our LGBTQ+ lives.” —Incarcerated Individual December 2019 62. California Institution for Women, Operational Procedure 321, Golden Program (January 2020). Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 39 The Department’s Working Group Proposed Modifications to Its PREA Screening Form, and Developed a Gender Identity Questionnaire and Script All incarcerated individuals admitted to the department, or those who transfer to another institution, undergo a PREA screening. The goal of the screening is to aid the department in assigning individuals to cells, dorms, rooms, and beds by identifying an individual’s risk of being sexually abused, probability of sexually abusing others, or both. The department also conducts an additional biannual assessment of transgender, nonbinary, and intersex individuals known to the department.63 Photo 4. PREA screening form. Photo provided courtesy of Terry Thornton of the California Department of Corrections and Rehabilitation. The department’s Transgender Housing and Search Working Group proposed the department adjust the screening form to broaden the scope of information that may indicate an individual is vulnerable to sexual victimization. The group recommended the department amend the question pertaining to whether an individual has been a victim of a substantiated sexual violence incident in a correctional setting to include unsubstantiated incidents, too. The group also proposed adding a question of whether the individual has experienced sexual victimization in a correctional setting that was not reported. These proposed changes attest to the department’s recognition that although some incidents of 63. DOM, Section 54040.14.2. Office of the Inspector General, State of California Return to Contents 40 | Special Report sexual victimization are not reported or cannot be proven, they are no less real. The working group also developed a gender identity questionnaire and script to assist departmental staff in facilitating respectful communication and determining appropriate housing and services for transgender, nonbinary, and intersex incarcerated individuals. The questionnaire asks individuals their pronouns, honorific or title, and whether they prefer to be searched according to the men’s policy or the women’s policy. The script to be used in administering the questionnaire explains to participants that the questions may be personal because they relate to gender identity and that they are vital in appropriately placing them. Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 41 The Working Group Examined and Proposed Changes to the Department’s Staff Training Relating to Transgender, Nonbinary, and Intersex Incarcerated Individuals Members of the working group developed and assisted the department in its implementation of a new training curriculum for its employees— “I am highly Working Successfully With Transgender, Intersex, and Nonbinary appreciative and grateful of the Inmates. The curriculum includes vital information for managing the opportunity to create unique set of challenges employees may face when communicating with and implement the and understanding the incarcerated transgender, nonbinary, and intersex lesson plan, “Working Successfully With population. The training includes information on safe housing as well as Transgender, Intersex appropriate terminology, search procedures, pronoun usage, and clothing and Nonbinary and personal property allowances. The curriculum was developed by Inmates,” in order to make the California subject matter experts within the department who have a passion for or Department of lived experience with the transgender, intersex, or nonbinary community. Corrections and Rehabilitation (CDCR) more in line with the The department required every institution to send five trainers to a LGBTQIA+ community. Training-for-Trainers session to receive instruction on how to provide It is paramount for any business, including staff with a basic understanding of the history, terminology, and needs CDCR to become more of the transgender, nonbinary, and intersex incarcerated population. The inclusive with not only training also provided an overview of laws and departmental policies their workforce, but offenders as well. An specific to this incarcerated population. At different times, OIG staff important message in from different classifications observed the department’s four-hour diversity training is for sessions. They found the department’s instructors to be knowledgeable employers and staff to do all they can to create about the subject, adept at presenting information and answering a safe and respectful difficult questions, and skilled in facilitating group discussions. The working environment, instructors held different positions within the department and had which in turn can foster positive conversations personal experience within the LGBTQIA+ community. They not only for employees and offered definitions of key terms, but used personal examples to cultivate reinforce the importance of empowering staff a greater understanding of the topic. They emphasized and reiterated and offenders to do the the importance of maintaining professionalism and respect by using right thing.” incarcerated individuals’ correct pronouns, a core concern expressed —Correctional Lieutenant during the forums. Megan Cherinka Subject Matter Expert and Department Trainer for The department now requires that employees at every institution attend Trainers a one-hour in-service training session that is co-taught by trainers who Transgender Housing and successfully completed Training-for-Trainers—Working Successfully Search Working Group With Transgender, Intersex, and Nonbinary Inmates. Every one-hour Member training session begins with a video-recorded address from Secretary Member of the LGBTQIA+ Community Ralph Diaz, highlighting the department’s commitment to “maintaining April 2020 a culture where everyone is safe and all are treated with respect and professionalism.” Diaz says, “This includes our fellow employees, incarcerated people, people on parole and community supervision, visitors, contractors, rehabilitation providers, and volunteers. This is more than a lofty goal or policy; this should be the norm.” Secretary Diaz’s address sets the tone for the training by letting participants know of the training’s importance to the department and what the Office of the Inspector General, State of California Return to Contents 42 | Special Report department’s expectations are. Echoing what they learned during the new Training-for-Trainers sessions, the trainers provide instruction on topics specific to the transgender, nonbinary, and intersex incarcerated population, such as safety in housing, appropriate terminology, appropriate pronoun usage, proper search procedures, and authorized clothing and personal property. “Regardless of our personal beliefs, it is the sworn responsibility of all departmental employees (and an expectation) that we treat each person with respect and professionalism. The foremost of which, for the transgender, intersex, and nonbinary community, is the use of correct names, pronouns, and honorifics.” —Officer Mandi Hauwert Subject Matter Expert and Department Trainer for Trainers, Transgender Housing and Search Working Group Member, and Member of the LGBTQIA+ Community April 2020 Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 43 The Department Has Effectuated Positive Change by Hosting Provider Fairs, Providing Transgender, Nonbinary, and Intersex Individuals With a Voice in Inmate Advisory Council Subcommittees, and Holding Its First Transgender Day of Remembrance Employees are the linchpin to the department’s success. Due to the passion and dedication of some departmental staff, the department has “Over the past two made strides in improving conditions of confinement for transgender, years, I have been empowered to work nonbinary, and intersex individuals in various ways. The department with this underserved hosted its first transgender provider fair for incarcerated females, took demographic at the California Institution steps to provide transgender, nonbinary, and intersex individuals with for Men. The Hiring representation in inmate advisory councils, and supported transgender, Authority has allowed nonbinary, and intersex individuals at San Quentin in hosting their first services such as provider fairs, group counseling, Transgender Day of Remembrance event. and a Rehabilitative Achievement Credit approved group (CAGE, Cultural Awareness and Gender Education) to spread the work of inclusion and understanding to the entire population. The goal of our efforts is to develop a sense of community amongst our incarcerated population, understanding that if we effectively teach people to cohabitate with individuals unlike themselves in here, they have a greater chance of success upon release.” —California Institution for Men Community Resource Photo 5. Kristoffer Applegate, Associate Director, Office of Correctional Policy Manager Research, Division of Correctional Policy Research and Internal Oversight, Delinia Lewis California Department of Corrections and Rehabilitation, speaking with two March 2020 incarcerated individuals. Photo provided courtesy of Terry Thornton of the California Department of Corrections and Rehabilitation. On April 29, 2019, the California Institution for Men hosted the department’s first Transgender Provider Fair for Incarcerated Females. Those in attendance included external stakeholders, such as Asian Pacific AIDS Intervention Team; St. John’s Well Child and Family Center; TransLatin@Coalition, Restorative Justice Minister Nora Jacob; and Urban Mission, Pomona. These stakeholders provided information on postrelease housing, employment, and medical and mental health services. Thirty-six transgender females, over half of whom were scheduled to parole in two years or less, participated in a two-hour event Office of the Inspector General, State of California Return to Contents 44 | Special Report that included a presentation by service providers outlining the resources “I have been with and services they offer, followed by an opportunity to visit the providers’ the department for display tables and collect information to assist them in transitioning 20 years. I recognize back to society. The provider fair was well received by transgender, the hardships of being a transgender individual nonbinary, and intersex incarcerated individuals. External stakeholders living in a prison. It’s recommended the department conduct similar fairs at all institutions. just common sense. . . . I am a professional employee and have When a facility captain at another institution found that transgender, always supported doing nonbinary, and intersex individuals did not have representation on the the right thing . . . and I am supported by my inmate advisory council or access to the institution’s management team administration.” to express concerns, the facility captain met with several transgender, —Mule Creek nonbinary, and intersex individuals to develop a viable solution. Since State Prison then, the Inmate Advisory Council Bylaws for three facilities were Facility Captain and Transgender amended to include six honorary members, including a transgender, Coordinator, and Liaison nonbinary, or intersex representative, and eight Standing Committees, March 2020 including a Transgender Committee.64 “What the women of San Quentin put together was remarkable and emotional, and I am so proud of the hard work they did to make this event happen. Seeing Photo 6. Amy Miller, Director of the Division of Correctional Policy Research their dedication, and and Internal Oversight, California Department of Corrections and Rehabilitation, the support of the rest speaking with three incarcerated individuals. of the incarcerated people and staff Photo provided courtesy of Terry Thornton of the California Department of who attended was Corrections and Rehabilitation. inspirational.” —Kristoffer Applegate On November 20, 2019, the transgender, nonbinary, and intersex Associate Director Office of Correctional incarcerated population at San Quentin State Prison was supported by Policy Research, the department in holding its first Transgender Day of Remembrance, Division of Correctional an annual observance honoring the memory of transgender, nonbinary, Policy Research and Internal Oversight, and intersex individuals who were fatal victims of violence. Audience California Department members included Senator Scott Wiener and his aides, executive of Corrections and Rehabilitation, staff from the department, external stakeholders, members of the and Member of the department’s working group, San Quentin State Prison employees, and LGBTQIA+ Community members of the incarcerated population. December 2019 64. Mule Creek State Prison, Inmate Advisory Council Bylaws (2019) Article IV, Section 1 and Article IX, Section 2. Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 45 Senate Bill 132 Will Require Further Changes to the Department’s Policies If signed into law, Senate Bill 132, authored by Senator Scott Wiener and supported by external stakeholders, would require improvements within the department to address many of the shortcomings identified in this report. The legislation was a topic of discussion during the forums and in the written comments incarcerated individuals submitted as part of their survey. Incarcerated transgender, nonbinary, and intersex individuals expressed widespread opinions regarding the proposed legislation and future housing policies. Appendix B of this report includes some of those opinions. As of the date of the publishing of this report, Senate Bill 132 remains pending. However, we anticipate the legislation will soon be submitted for Governor Gavin Newsom’s consideration. The department informed us that it is working with Senator Wiener’s office to ensure it is ready to effectively implement Senate Bill 132 on January 1, 2021, if Governor Newsom signs the bill into law. “Incarcerated transgender people deserve to be housed in facilities consistent with their gender identity…When we house trans people based on their birth-assigned gender, we place them at high risk of sexual assault and violence. SB 132 will help ensure transgender individuals are treated with dignity and have their gender identity respected.”* —Senator Scott Wiener California Senate District 11 May 23, 2019 * Senate District 11, “Senate Passes Senator Wiener’s Legislation to Ensure Incarcerated Transgender People Are Housed According to their Gender Identity” (May 23, 2019), https://sd11.senate.ca.gov/news/20190523-senate-passes-senator- wiener%E2%80%99s-legislation-ensure-incarcerated-transgender-people-are. Office of the Inspector General, State of California Return to Contents 46 | Special Report (This page left blank for reproduction purposes.) Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 47 Recommendations We commend the department for soliciting input from the transgender, nonbinary, and intersex population when making decisions about policy. During the department’s survey and forums, incarcerated individuals articulated their need for more dignity and respect, increased privacy to shield against cross-gender viewing, a meaningful path to report sexual violence, safe housing, equitable access to jobs and programs, additional clothing and items congruent with their gender identity and expression, and better medical care. External stakeholders provide incarcerated transgender, nonbinary, and intersex individuals with a cogent voice. They expressed concern that individuals do not report sexual violence due to potential negative repercussions, that the department impermissibly places incarcerated people in prolonged isolation, that transgender and gender nonconforming individuals do not have sufficient access to clothing or property items congruent with their gender identity and expression, that the department provides these individuals with inadequate medical care, and that the department does not adequately handle grievances. External stakeholders support Senate Bill 132, which would enable gender nonconforming individuals to choose whether to be housed at an institution for men or an institution for women, and whether to be searched pursuant to the male or female search policy. Unfortunately, the cruel, ignorant, or misguided behavior of some staff has had a negative impact on incarcerated transgender, nonbinary, and intersex individuals and overshadows the compassion and exemplary work of other departmental staff. That transgender, nonbinary, and intersex individuals are entitled to the same respect as other individuals is an attitude that must be conveyed from the top down. Hiring authorities, managers, and supervisors must continue to emphasize that abuse, ridicule, and other inappropriate behavior is a violation of departmental policy and will not be tolerated. While incarcerated individuals and external stakeholders articulated a number of serious concerns, the department has made headway in addressing some of the issues critical to incarcerated transgender, nonbinary, and intersex individuals. While issues remain unresolved, the department has indicated it is committed to cultivating a safe and professional environment for these individuals. Doing so hinges on the department’s collaboration with external stakeholders and communication with incarcerated individuals to examine potential policy changes that better protect and serve the incarcerated population and the public. The OIG is hopeful the department will continue its work creating a safe environment for the incarcerated transgender, nonbinary, and intersex population and continue to seek input from external stakeholders and the Office of the Inspector General, State of California Return to Contents 48 | Special Report incarcerated community. However, we believe there are concrete steps the department should take: • The department should implement system-wide oversight and monitoring of complaints made by incarcerated transgender, nonbinary, and intersex individuals against staff to ensure the complaints are properly investigated and discipline is taken against staff, when appropriate. • The department should incite a clear, department-wide policy on how, when, and where articles of department-authorized clothing may be worn by transgender, nonbinary, and intersex individuals and implement that policy through regular staff training. • The department should continually optimize shelf space in canteens and effectively manage the inventory of clothing and property items for incarcerated transgender, nonbinary, and intersex individuals as demographics, trends, and purchasing fluctuate. • The department should consider staggering the scheduling of health care appointments for transgender, nonbinary, and intersex patients to reduce the unwelcome attention these individuals face. • The department should fully implement the mandates of Senate Bill 132, regardless of whether the bill is signed into law. • The department should review the new training curriculum annually and update it as needed. • The department should establish an annual survey of the transgender, nonbinary, and intersex population to determine whether the implementation of the new training curriculum has meaningfully improved conditions of confinement. Finally, we encourage the department to continue to support its staff in their dedication to effectuating positive change and working with external stakeholders and the incarcerated transgender, nonbinary, and intersex population. The department’s efforts have not gone unnoticed by the incarcerated population. “I am thankful this is getting attention today. My view of self has impacted everything in life and probably a big factor to my crime and issues with addiction. Its great that we are getting a voice.” —Incarcerated Individual November 2019 Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 49 Appendices Office of the Inspector General, State of California Return to Contents 50 | Special Report Appendix A: The Department’s Transgender, Nonbinary, and Intersex Inmate Survey In this appendix, we include a copy of the department’s Transgender, Nonbinary, and Intersex Inmate Survey as well as the department’s analysis of the results of the surveys conducted between November 2019 and January 2020. We include this information to provide context on the information the department solicited directly from the incarcerated transgender, nonbinary, and intersex population and to share our source of information for some of the infographics included in this report. Figure A–1. Transgender, Nonbinary, and Intersex Inmate Survey Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 51 Figure A–1. Transgender, Nonbinary, and Intersex Inmate Survey (continued) Office of the Inspector General, State of California Return to Contents 52 | Special Report Figure A–2. The Department’s Analysis of the Transgender, Nonbinary, and Intersex Inmate Survey Results at Institutions for Women Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 53 Figure A–2. The Department’s Analysis of the Transgender, Nonbinary, and Intersex Inmate Survey Results at Institutions for Women (continued) Office of the Inspector General, State of California Return to Contents 54 | Special Report Figure A–3. The Department’s Analysis of the Transgender, Nonbinary, and Intersex Inmate Survey Results at Institutions for Men Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 55 Figure A–3. The Department’s Analysis of the Transgender, Nonbinary, and Intersex Inmate Survey Results at Institutions for Men (continued) Office of the Inspector General, State of California Return to Contents 56 | Special Report Appendix B: Comments Made by Incarcerated Transgender, Nonbinary, and Intersex Individuals Through the Surveys In this appendix, we provide some additional comments made by incarcerated transgender, nonbinary, and intersex individuals as part of their responses to the survey. We include these additional comments to provide context regarding the varied experiences and concerns of the transgender, nonbinary, and intersex incarcerated population. These comments begin on the next page. Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 57 Incarcerated Transgender, Nonbinary, and Intersex Individuals Described a Culture of Disrespect by Both Staff and Other Incarcerated Individuals “ Officers purposely refer to us as “him” or other types of disrespectful pronouns. — Transgender Woman November 2019 At this point in time CDCR officers at this facility think when you refer to a female as a him it’s a joke. — Individual Who Most Often Identifies as Female November 2019 The issue should have been addressed. I have experienced staff officials not referring to me with appropriate pronouns and body searches/strip searches I’ve experience[d] are horrible, with officers staff making fun of me as a TG and making derogatory comments that Oh well, your a man and your in a mans facility punk. And so on. Some making ugly remarks and gestures expressed when searching me. I feel humiliated, violated and disrespected as a women having to go through this horrible traumatic experience. I’d appreciate that the transgender policy be made law to help prevent this type of on-going problem. — Transgender Woman November 2019 I’m a lifer and I would very much like to live where I’m not degraded by staff and their hurtful comments and actions. I’m daily referred to as a “him” even though I’m clearly a female. I’m really tired of all the hurt and degradation I go through everyday. — Transgender Woman December 2019 Some staff are still have a dislike and prejudice towards transgender inmates and how we dress. — Transgender Woman December” 2019 Office of the Inspector General, State of California Return to Contents 58 | Special Report “ Would like to see improved conduct from officers in professionalism in dealings with the transgender/non-binary/ intersex community. — Transgender Man December 2019 What most happens here with officers is “I” keep on being called “Ser” “Him,” “He” or being made fun of by laughter by officers when I tell them to call me Ms, her, or she. They have no respect for transgenders. — Transgender Woman December 2019 C/Os being homophobic and trying to be funny by just putting anyone in our cells not caring about the dangers. Also the respect level CDCR has with the transgender community is not what it should be. They’re shading our rights. — Transgender Woman December 2019 Being nonbinary is different than transgender. We shouldn’t have to identify as trans with the box being checked. It is insulting. Can we get our own identification box? — Nonbinary Individual December 2019 I just wanted to say [this institution] is a transgender hub, however, it is NOT transgender friendly. We are hated, mistreated and publicly humiliated daily! We are not safe! — Transgender Woman December 2019 I would like if certain correctional officers have proper training when it comes to transgender inmate[s] and who are in the process because certain people may be anti-transgender and do[n’t] view are option at life the same as theirs. — Nonbinary Individual November” 2019 Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 59 “ My concerns are, not enough meals, not being address[ed] correctly @ all times when in paperwork and in person. The officers begin to feel threatened by us who are on the shots. So we tend to be targeted more aggressively and more often. We are being treated very poorly due to us being trans. — Transgender Man December 2019 There should be constant training of staff for pronouns and the misgendering of transpeople. — Transgender Woman December 2019 I strongly feel staff needs to be retrained on how to address our transgender needs whether it comes to searching, being spoken to. I find alot of Hispanic C/O have a real problem with transgender Latinas. Its a cultural thing. And they (C/Os) become aggressive and offended like we embarrass the Hispanic race. — Nonbinary Individual December 2019 ” Office of the Inspector General, State of California Return to Contents 60 | Special Report Incarcerated Transgender, Nonbinary, and Intersex Individuals Expressed That the Department Does Not Provide Sufficient Privacy When They Are Unclothed “ It was pointed out that there is nothing but two partial partitions instead of doors on the showers. The partitions hid[e] very little. Lots of transgenders take “bird baths” in their cells instead of being exposed in one of these showers. There isn’t any major security concerns with a door because a staff can still see and it provides privacy. — Transgender Woman November 2019 Using a urinal is degrading, we are forced to use the bathroom in the dayroom and yard. We should be given the opportunity to use the bathroom in private in our cell, and not in front of a yard or dayroom. — Transgender Woman November 2019 Getting shower time without the males looking in. — Transgender Woman December 2019 There are not enough privacy curtains in housing units. — Transgender Woman December 2019 Shower program: alot of times we are only allow[e]d showers with other inmates that are not transgender or even gay w[h]ich forces us to “bird bath” only in our cells to avoid problems. — Transgender Woman December 2019 Being housed in [this institution] theres no privacy in restroom areas. I feel that we should have doors on stalls. — Transgender Woman November 2019 ” Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 61 Incarcerated Transgender, Nonbinary, and Intersex Individuals Expressed That Reporting Sexual Assault and Harassment Is Futile “ There are problems with staff taking our reports of sexual misconduct and violence against us seriously, even when it is reported years later. They even are disrespectful when addressing us when we are addressed. I believe that staff need to be more professional in their actions with us and take our complaints seriously. — Transgender Woman November 2019 I do not believe I can safely report harassment, violation of law or violence committed based on my transgender status. As one who has received retaliation and retaliatory transfers as a result of filing 602s and staff complaints I am concerned about reporting staff misconduct. This prison has a reputation of such harassment. Also that threat of transfer to men’s prison without volunteering. — Transgender Man December 2019 The PREA standards for transgender optional female housing assessments are not in compliance by CDCR nor is the prohibition of cross-gender strip searches. Even though I have a legal gender change and a new birth certificate as “female.” — Transgender Woman November 2019 It isn’t safe reporting harassment because staff, in indirect ways, still retaliate. Alot of times it’s in the form of searches and “shake downs” that staff can say is perfectly in their right to conduct. They also use abusive language and are very hostile. — Transgender Woman December 2019 I feel as a transgender we cant report any discrimination or sexual harassment because Im being retaliated against. — Transgender Woman December 2019 ” Office of the Inspector General, State of California Return to Contents 62 | Special Report “ PREA does not work and investigations are a joke and half investigated the same results of insufficient evidence even when there has been a crime. — Transgender Woman December 2019 When a PREA complaint is lodged they (staff) have a tendency to minimize your issues and let everyone know you made the complaint. They try to make you a pariah as if you are making complaints for personal reasons. — Transgender Woman December 2019 I believe that CDCR staff should take transgender concerns more seriously, including addressing those concerns by recording such concerns. (e.g., inmates harassing transgenders by inappropriate sexual conduct as requests, comments, exposing themselves to transgenders for wanting sex from us. This includes, staff always transferring out transgenders to other facilities who report incidents, instead of the male inmate violator’s, especially when were innocent. — Transgender Woman December 2019 We cannot safely report discrimination, harassment or violence based on being a transgender because correctional staff retaliate by moving us or our cellies, stealing our property, fabricating RVRs, and intentionally placing us in situations where we will be harmed or have to use violence to protect ourselves. — Transgender Woman December 2019 ” Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 63 Incarcerated Transgender, Nonbinary, and Intersex Individuals Reported They Are at Risk of Violence Due to Unsafe Housing and the Department Does Not Respond Adequately to Their Concerns “ The staff will put anyone in your cell and that is a danger to transgenders. If a person refuses a celly that person gets disciplined. [This institution] has a surprising number of cell murders since I’ve been here. I myself will rather go to ad-seg than accept a stranger as a celly. I believe that because of the delicate nature of this, staff should give that person a reasonable amount of time to find a compatible celly instead of endangering us with involuntary co-habitation. — Transgender Woman November 2019 Being a M to F transgender, CDCR does not honor housing in choice of housing based on what feels safer for the individual and discriminates due to genital anatomy. — Transgender Woman December 2019 I would appreciate if staff would not force me to double cell with just anybody because I have been threatened because of my identity as a woman. — Individual Who Identifies as Both Male and Female December 2019 As a transgender [it] is hard to talk to staff when you feel unsafe in the cell with a celly. They do no listen to us all they do is write us 115s and punish us and we end up getting hurt. — Transgender Woman December 2019 ” Office of the Inspector General, State of California Return to Contents 64 | Special Report “ As a transgender its hard to feel like we can go to staff because when we do they do not listen and write you up for being out of bounds. — Transgender Woman December 2019 Not getting 115s for refusing housing to other inmates due to people not being comfortable with living with a transgender. — Transgender Woman December 2019 When told I wasn’t safe I was threatened with ad segregation (the hole) as the only place to keep me safe. — Intersex Individual Who Most Often Identifies as Female December 2019 I don’t believe that gender identity and sexual preference are taken into consideration on the same level or to the same degree as other mental health and housing considerations. For example, you are asked if you mind being housed with other races and certain offenders. People are not asked if preference and identity impact their living conditions which creates room for one to live uncomfortabl[y] or get written-up for refusing housing. — Nonbinary Individual Who Most Often Identifies as Male December” 2019 Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 65 Incarcerated Transgender, Nonbinary, and Intersex Individuals Described Discrimination in Vocational Training, Job Assignments, and Other Activities “ Transgenders are still being denied access to HRM and PIA laundry vocational skills. — Individual Who Most Often Identifies as Female November 2019 I am discriminated against when it comes to job assignments. I am good at any trades related work/repair but can only get low skill work. — Transgender Woman December 2019 Was wondering if female institutions could by chance get the ACT program that San Quentin has. — Transgender Man November 2019 There needs to be an LGBTQ class weekly that will inform and advise the community here at [this institution]. — Nonbinary Individual November 2019 Work discrimination is a problem here as well. — Transgender Woman December 2019 More jobs for transgender, not yard crew. — Transgender Woman December 2019 ” Office of the Inspector General, State of California Return to Contents 66 | Special Report Incarcerated Transgender, Nonbinary, and Intersex Individuals Described Discrimination in Access to Clothing and Property Items That Align With Their Gender Identity and Expression “ Will the state provide compression bras to indigent inmates[?] — Transgender Man November 2019 I enjoy very much that the canteen [has] transgender makeup at all. The issue I have been having is the selection is very limited, what is on canteen here works well only for darker comple[x]ions. I think a few more color-type options would go over well. — Transgender Woman November 2019 We should be able to get female i[t]ems on canteen. — Transgender Woman December 2019 Access to more make-up, lingerie, razors. — Transgender Woman November 2019 We need to have transgender clothing. — Transgender Woman November 2019 I feel discriminated in the clothing distribution that we are given. The jean jacket is excellent most of the time except in the very cold months and we transgenders are not allowed sweatshirts. It would be very considerate of CDC[R] to allow us sweatshirts too, but if that is not possible would we be able to ask to wear our own catalog purchased sweatshirts? — Transgender Woman December 2019 ” Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 67 “ Need of plus size clothing and any resources available. — Transgender Woman December 2019 Inability to access razors or close shave razor like devices for indigent transgender inmates at this [Institution] 180 hub trans prison. M[o]re access to transgender literature. — Transgender Woman December 2019 More effemenent clothing and especially the boots and more variety in make-up it’s almost racist, the choice available. — Transgender Woman December 2019 Being nonbinary is fluid. I personally switch genders every month or so. I need access to both male and female clothing in order to accommodate my fluidity. — Nonbinary Individual December 2019 I think not being allowed make-up and other feminin[e] products is damaging in the SHU to our ment[a]l state bec[a]use some of us are back here for 2–5 years at a time. — Transgender Woman November 2019 ” Office of the Inspector General, State of California Return to Contents 68 | Special Report Incarcerated Transgender, Nonbinary, and Intersex Individuals Indicated They Face Discrimination Because They Lack a Voice in Inmate Advisory Councils “ [Facility] has no transgender MAC rep and it seems like a roadblock and hemming and hawing happens. Its an issue that isn’t taken seriously. — Transgender Woman November 2019 Transgender I.A.C. rep doesn’t get the same access to administration as the other I.A.C. gets. — Transgender Woman December 2019 ” Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 69 Transgender, Nonbinary, and Intersex Incarcerated Individuals Expressed Frustration With the Department’s Provision of Health Care “ Obtaining SRS surgery has been hard for me to get approved of an[d] I would like to have the surgery to complete the physical aspect of my transition. — Transgender Woman November 2019 I would like the sex change done because I’ve been denied twice. — Transgender Woman November 2019 I believe as transgenders we should be provided with more information about the shots. Also for those who stop taking them they should not stop them cold turkey. The side effects are really affecting people who stop them and aren’t provided care for their bodys side effects without the shots. — Transgender Woman Who Most Often Identifies as Male November 2019 Educating staff on transgenders. Medical staff addressing you as gender you are especially if on hormones. — Transgender Man December 2019 I feel that only the inmates who are in the process of changing their preference should be documented as “transgender” meaning if they are taking the testosterone shot. Also, a lot of us who are transgender and are on the shots should have more resources regarding how to deal with the possible side effects, do we need to take certain vitamins, we need more food, etc. Also our clothing needs to be changed and if transgenders are considering breast removal, we should be able to begin the process after discussing it with a doctor. — Transgender Man November 2019 ” Office of the Inspector General, State of California Return to Contents 70 | Special Report “ Mental health was very adamant on making sure I didn’t get diagnosed GD here @ [this institution] and it took another institution to help me upon transfer. — Nonbinary Individual November 2019 I would like an in person transgender doctor so I could ask more questions and concerns about my body change. I also want to know how does my transgender continue on the outside world. — Transgender Man November 2019 I’m not sure if this is the box but I would like to address not being able to have the proper medical care that will initially go with being on testosterone shots. I say this because the nurses administering the shots really don’t have the transgender knowledge or even being able to be monitored as directed by the shots. I just feel like I’m on the shots without having proper guidance and knowledge from my practitioner. — Individual Who Most Often Identifies as Male November 2019 I am being refused my medical slips. I have brought it to their attention to give me my hormones pri[o]r to coming to [this institution] but still no answer. — Transgender Woman December 2019 Why is it so difficult to approved or even get approved gender reassignment surgery while housed in CDCR[?] — Transgender Woman December 2019 ” Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 71 Comments Regarding Safe Housing and Senate Bill 132 “ Housing needs to be sensitive to trans inmates’ needs. — Transgender Woman November 2019 Hoping that [Senate Bill] 132 changes this so I can go to a women’s facility where I would feel safe. Also [I] hope if discipline history is looked into, that consideration is given [to] “why” that resulted in discipline and that you not be excluded based on violence not directed at institution. — Transgender Woman I would opt to live in a male institution if I could get the bottom surgery—but the process seems to be denied for all the FTM trans I know, with only a few getting [a] mastectomy. — Transgender Man December 2019 My only concern with being housed at a female institution is whether or not I would be accepted by the female inmates. — Transgender Woman December 2019 The designation of being transgender should require a diagnosis of ‘Gender Dysphoria’ (through medical/trans specialist and also mental health) because men want to shower with us and have access to our property. — Transgender Woman December 2019 Housing transgender women by ourselves until we find somebody we are comfortable with. We as transgender women should have lower bunk chronos permanently! — Transgender Woman December 2019 I would prefer the option to chose (after reassignment surgery) to stay in a male institution. — Transgender Woman December 2019 ” Office of the Inspector General, State of California Return to Contents Return to Contents 72 | Special Report “ I am afraid of going to a female prison because their policy is to treat us as a ‘new commitment’ and restrict access to razors and I have facial hair that if unshaven is upsetting my ability to function. — Transgender Woman December 2019 No female inmate (trans) should be housed in a mens prison. The risk is to[o] great to both the inmate and CDCR. — Transgender Woman December 2019 You should just make all prisons and jails in California co-ed meaning both men and women will be housed together. —Individual Who Most Often Identifies as Female December 2019 I would like to see SB 132 pass, because it is very helpful to help protect girls in CDCR. — Transgender Woman December 2019 I only want to be housed with female I/Ms or transgender females. I don’t feel safe in the shower. Every day I am harassed by I/Ms & staff. Eventually I will be assaulted or in a fight. — Transgender Woman December 2019 It would be beneficial if we had the option to live at a womens facility but not mandatory. — Transgender Woman December 2019 As a trans-female I would like the option of only being housed with other inmates when a signed chrono (by both inmates) addresses compatibility. — Transgender Woman December 2019 I feel as though although I identify as trans male, I would become a rape victim being housed with men twice my size with a penis. Especially since I still keep getting denied breast removal and I am without a penis. I don’t feel it would be a safe transfer. — Transgender Man December 2019 ” Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 73 Miscellaneous Comments “ Those of us taking the shots and holding our transgender cards are going thru a complete body change and [this institution] doesn’t allow us to get fed sufficiently according to our body change. We should be getting the same portions as the men. Thank you. — Individual Who Most Often Identifies as Female November 2019 As FTM trans, my metabolism has changed with testosterone therapy, but [this institution] does not allow increased food portions—amounts that match the men’s diet. — Transgender Man November 2019 More transgender survey and questionaires for future purposes. — Transgender Woman December 2019 ” Office of the Inspector General, State of California Return to Contents 74 | Special Report (This page left blank for reproduction purposes.) Office of the Inspector General, State of California Return to Contents Steps Toward Addressing Prison Conditions for Incarcerated Transgender, Nonbinary, and Intersex Individuals | 75 The California Department of Corrections and Rehabilitation’s Response Office of the Inspector General, State of California Return to Contents 76 | Special Report The California Department of Corrections and Rehabilitation’s Response (continued) Office of the Inspector General, State of California Return to Contents SSppeecciiaall RReeppoorrtt TThhee CCaalliiffoorrnniiaa DDeeppaarrttmmeenntt ooff CCoorrrreeccttiioonnss aanndd RReehhaabbiilliittaattiioonn HHaass TTaakkeenn TThhoouugghhttffuull aanndd IImmppoorrttaanntt SStteeppss ttoo AAddddrreessss tthhee DDiifffificcuulltt CCoonnddiittiioonnss ooff CCoonnfifinneemmeenntt ffoorr IInnccaarrcceerraatteedd TTrraannssggeennddeerr,, NNoonnbbiinnaarryy,, aanndd IInntteerrsseexx IInnddiivviidduuaallss OFFICE of the INSPECTOR GENERAL Roy W. Wesley Inspector General Bryan B. Beyer Chief Deputy Inspector General STATE of CALIFORNIA September 2020 OIG