Senate Criminal Justice Bill Would Let Inmates Dictate Prison Based On Gender Identity

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A convict would be able to tell state authorities whether to send the convict to a men’s prison or a women’s prison based on the convict’s stated gender identity, according to a bill passed by the Massachusetts Senate.

The little-noticed provision is tucked away in the massive criminal justice reform bill House members are now considering.

The Senate passed the bill in the post-midnight hours of October 27, 27-10. The provision calls for housing prisoners “in a correctional facility with inmates with the same gender identity, provided that the placement is consistent with the prisoner’s request.”

The bill also mandates that prisoners claiming a gender identity “that differs from the prisoner’s sex assigned at birth” would be allowed to determine their housing even without an official diagnosis of “gender dysphoria.”

A convict would then be accommodated according to the convict’s self-proclaimed gender identity in matters including access to clothing and commissary items.

The bill also would provide an inmate the right to be “searched by an officer of the same gender identity if the search requires an inmate to remove all clothing or includes a visual inspection of the anal cavity or genitals; provided, however, that the officer’s gender identity is consistent with the prisoner’s request …”

In other words, a biological male claiming to identify as a female could demand that a female prison guard perform an intimate search of the convict’s body.

The House’s current version of the criminal justice reform bill does not delve into accommodating gender identity.

The Senate’s version harkens back to the saga of Michelle Kosilek, born a male, who landed a life sentence without parole in the 1990 strangling killing of then-wife Cheryl McCaul. Years later, Kosilek made headlines again by trying to force the state to pay for a gender reassignment surgery. Kosilek’s barrage of lawsuits, both successful and unsuccessful, resulted in the state being ordered in 2002 to provide Kosilek with hormone therapy.

Kosilek later lost a lawsuit in 2009 in which Kosilek demanded that the state pay for electrolysis treatments used to remove facial hair.

Kosilek scored a major victory in 2012 when a federal judge ruled that the state violated the inmate’s constitutional rights in denying the inmate access to a state-funded sex change, which the judge found qualified as “cruel and unusual punishment.”

The Department of Corrections appealed the ruling, in part citing security concerns, and in 2014 won a reversal of the original ruling.

In 2015 the U.S. Supreme Court declined to hear Kosilek’s case.  

If passed, the Senate’s bill would essentially reverse that ruling.

Other elements related to gender identity appearing in the Senate version include a mandate ordering the creation of a state commission charged with studying the “health and safety” of “lesbian, gay, transgender, queer and intersex prisoners in the correctional institutions, jails and houses of correction of the commonwealth in order to evaluate current access to appropriate healthcare services and health outcomes.”

Among the duties the commission is tasked with is the job of researching “the number of denied requests for an alternative housing or facility placement by prisoners in connection with their gender identity and the reasons for the denial.”

The House is slated to take up deliberations as soon as Monday. According to the State House News Service, negotiations with the Senate may start during the state Legislature’s seven-week holiday recess.