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A transgender flag being waved at LGBT gay pride march
Humanize From Discovery Institute's Center on Human Exceptionalism
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NY Trans Bill Imperils Female Inmates

Originally published at National Review

Do New York Democrats hate women inmates? Or just not care about their well-being and safety?

A bill is moving through the assembly that would grant a near absolute right of imprisoned men who say they are women to be incarcerated in female prisons. (The same would be true the other way around, too. But I suspect that would be far less of an issue). From A-709:

An incarcerated individual who has a gender identity that differs from their assigned sex at birth, who has a diagnosis of gender dysphoria, who has a variation in their sex characteristics, or who self-identifies as transgender, gender nonconforming, nonbinary, or intersex pursuant to subdivision seven of section one hundred thirty-seven of this chapter shall be presumptively placed in a correctional facility or other institution with persons of the gender that most closely align with such person’s self-attested gender identity unless the person opts out of such placement. [In all block quotes, emphases are mine.]

Notice that the transgendered person merely has to so identify to be placed in the prison of the sex he or she claims to be. There need not be any history of transgenderism, previous treatment for it, or any other precondition. In other words, it can be done with the snap of a finger, on a whim, or as a lark.

And the trans/non-binary inmate would be entitled to go back and forth between male and female prisons, seemingly at will:

The incarcerated individual shall be permitted to leave such presumptive placement and transfer to a facility housing individuals of their assigned sex at birth at any time. Any such person who has opted out of such presumptive placement or who leaves such placement may again request placement in a correctional facility with persons of the gender that most closely aligns with their self-attested gender identity at any time. 

Violation of these rules, by the way, would be deemed a civil-rights violation, entitling the aggrieved person to injunctive relief, damages, and attorney’s fees.

The right of, say, a male to be in a female prison would not be absolute.

Such presumptive placement may be overcome by a determination in writing by the commissioner or the commissioner’s designee that there is clear and convincing evidence that such person presents a current danger of committing gender-based violence against others.

That limitation is less than meets the eye. Clear and convincing evidence is a stringent standard of proof that can be hard to meet. Moreover, the language of the bill creates a weighty presumption in favor of allowing the trans prisoner to choose where to be incarcerated.

Also, note also the following:

A denial of presumptive placement shall not be based on any discriminatory reasons, including but not limited to (a) the past or current sex characteristics, including chromosomes, genitals, gonads, other internal or external reproductive anatomy, secondary sex characteristics, or hormone function of the person whose housing placement is at issue, (b) the sexual orientation of the person whose housing placement is at issue, (c) the complaints of other incarcerated individuals who do not wish to be housed with a non-cisgender or intersex person due to that person’s gender identity or sex characteristics, or (d) a factor present among other people in the presumptive housing unit or facility.

In other words, the bill clearly would force (usually, I presume) women inmates to shower with individuals with male genitalia, share other intimate spaces with them, and be housed in the same dormitories or jail cells. And their complaints would mean nothing! Good grief.

If this bill passes, I predict that there will be rapes of women inmates and pregnancies from consensual sexual relations. Indeed, such events have already happened — including in New York — when male trans prisoners were incarcerated based on their subjective gender identities rather than their biology.

I should also add that if a woman who identifies as male wants to be in a men’s prison, that inmate would also be materially imperiled by being incarcerated in that milieu.

This issue continues to provoke chaos — with no end in sight.

Wesley J. Smith

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.