Introduction
The following paragraphs contain descriptions of assault and sexual violence and may be triggering to those who are survivors of such violence. To avoid reading these descriptions, please skip to paragraph four of this Part, which can be found in the middle of page 104.
In 2012, Ashley Diamond (Ashley), a forty-two-year-old transgender woman, was taken into custody by the Georgia Department of Corrections (GDOC).1 She was diagnosed with gender dysphoria at age fifteen and had been taking hormones since she was seventeen.2 She had feminine hips, breasts, and had never had facial hair before her incarceration due to taking hormones from a young age.3 During her intake interview, Ashley told prison officials she was a trans woman and was afraid of being sexually assaulted while in a male facility.4 Despite her fears—and warnings from the prison’s own clinicians that she was at high risk for sexual victimization—GDOC ignored her pleas and housed her at a male facility.5
Less than a month after being incarcerated, Ashley was brutally gang-raped by six incarcerated men, who beat her until she was unconscious.6 Over the next three years, Ashley was sexually assaulted over ten times until she was finally released from prison in 2015.7 During this time, she repeatedly notified GDOC about the “sexual assaults and begged to be transferred to a safer facility.”8 She was told by GDOC employees that they could not protect her inside a men’s prison and that she should “guard her booty” and “be prepared to fight.”9 Because of these assaults, Ashley developed PTSD—including symptoms such as nightmares, panic attacks, and flashbacks—and severe depression, manifesting in self-harm and thoughts of suicide.10 In 2018, Ashley spent four months in county jail for a traffic ticket she received for a broken taillight and a trumped-up bribery charged that was later dismissed.11 In 2019, she was arrested again for a technical parole violation for spending two weeks at a trans-inclusive drug treatment facility in Florida and for missing a court date, leading to Ashley’s parole being revoked and to her being sent back to prison.12 Despite knowing her history of sexual victimization, GDOC again placed Ashley in a series of men’s prisons.13 Between 2019 and November of 2020, when her lawsuit against GDOC was filed, she had been sexually assaulted an additional fourteen times.14
While Ashley’s story is shocking, it is certainly not uncommon. There are many other similar stories of trans women suffering abuse in prisons that have been publicized through advocacy, lawsuits, and the media.15 While Ashley’s story has become widely known through her self-advocacy efforts, including videos she shot from prison about her condition on a contraband cellphone16 and through lawsuits brought on her behalf by the Southern Poverty Law Center,17 many trans people in prison suffer without the benefit of public and media attention. A large survey conducted on incarcerated trans people found 15% of trans people reported being sexually assaulted while in jail or prison.18 To put that in perspective, this is over three times higher than the average rate of sexual assault in U.S. state and federal prisons, which is 4%.19 The numbers are even worse for Black trans people; the same survey found that 34% of Black trans people had experienced sexual assault in prison or jail.20
Mass incarceration is one of the defining civil rights issues of our time.21 It is widely known that the United States has not only the greatest incarceration rate,22 but also the greatest total number of people in prison, even more than much more populous countries like China.23 Trans people are often ignored in our discussions of prisons, despite the fact that the lifetime incarceration rate for trans people is more than twice the national average.24 For Black trans people, 47%—nearly half—report having been to prison or jail at some point in their lives, compared to 32.2% of all Black men.25 In the United States, prisons are conservative institutions that strictly enforce the gender binary and gender roles.26 Trans people do not fit neatly in this binary, so they are erased both within the prison system and in media discussing prisons.27 Although LGBTQ+ people are a minority in prisons,28 the numbers are not insignificant. In the United States, an estimated 1.4 million people identify as transgender.29 Around 2% of transgender people report having been incarcerated within the past year.30 Thus, multiplying 1.4 million transgender people in the United States by 2% shows that approximately 28,000 trans people in the United States experience incarceration annually.
The type of prison—such as male or female, minimum security or maximum security—a trans person is housed in can have an impact on their experiences inside prison.31 The vast majority of incarcerated people are housed in single-sex prisons.32 This has posed a problem for housing trans people because of the conflict between the trans person’s gender identity and the desire of prison officials to house people according to their genitals.33 Adding to the complexity, any discussion about accommodating trans people is controversial and politically divisive, especially issues of including trans women in women’s spaces.34 Whether trans people will be housed according to gender identity or to their sex assigned at birth has been an exceptionally controversial and divisive topic, especially around the issue of housing trans women in women’s prisons.35 Trans activists do not universally agree on the correct solution to this problem, but most agree that de facto policies placing trans women almost exclusively in men’s prisons with little to no protection violate federal law and endanger trans women’s lives.36 Opponents of laws allowing trans people to be housed in a prison that matches their gender identity—although they only seem concerned about trans women being housed in women’s prisons—are vocal about their view that opportunistic men will take advantage of these laws to assault women.37
In 2019, New York passed the Gender Expression Non-Discrimination Act (GENDA).38 This law bans discrimination in “housing accommodations” on the basis of gender identity.39 By passing this law, New York joined an ever-increasing number of states that have passed laws to protect trans people in various areas, including housing,40 employment discrimination,41 and hate crimes.42 A few states have even passed laws that require incarcerated trans people to be housed according to their gender identity.43 Discourse around GENDA has focused on its impact on housing for nonincarcerated people.44 Accordingly, this Note focuses on GENDA’s impact on housing for incarcerated trans people and argues that GENDA makes the de facto housing of trans people in prisons based on the sex assigned to them at birth unlawful.
Part I discusses the current law, on the state and federal level, that provides protections to incarcerated transgender people and how that law has shaped where trans people are housed in prison.45 Part II details the background behind GENDA and provides an analysis of the law based on the text, canons of legal construction, the legislative history, and previous New York case law.46 Part III examines how this interpretation of the law interacts with existing New York law, federal law, and similar laws in other states, and how it impacts public policy considerations.47
I. Background
A. Basics About Transgender Identity
This Section will define various terms that are useful for understanding the subsequent discussion. Broadly speaking, a transgender person is someone whose gender identity is different from the sex they were assigned at birth.48 Someone who is not transgender is cisgender. A cisgender person is someone whose gender identity matches the sex they were assigned at birth.49 Two of the most common transgender identities are trans men—people assigned as female at birth but who transition to male—and trans women—people assigned as male at birth who transition to female.50 It should be noted that not all trans people fit neatly into these two categories.51 There are many people who fall along the trans spectrum who identify as nonbinary,52 genderqueer,53 two-spirited,54 or one of a myriad of other identities.55 For the sake of simplicity, this discussion focuses on trans people generally, with an emphasis on the experiences of trans men and trans women.
Transitioning is the process by which a trans person moves from living as their sex assigned at birth to their actual gender identity.56 Transitioning looks different for everyone.57 It can include using different pronouns, wearing different clothes, using makeup, getting different gender markers on legal documents, or undergoing hormone therapy or various medical procedures.58 For many, medical procedures that aid transition are critical and lifesaving,59 but not everyone needs or wants a particular medical intervention.60 While the media focuses on gender confirmation surgery,61 there are many other surgeries that trans people can undergo, including breast implants, removing breasts, liposuction, body contouring, hair removal, and hair reconstruction.62
In the past, trans people were diagnosed with a mental illness called gender identity disorder (GID). GID was replaced with gender dysphoria when the Diagnostic and Statistical Manual of Mental Disorders V (DSM-5) came out in 2013.63 The DSMs are books listing mental disorders and explaining how to classify them.64 GID labeled being transgender itself as a mental disorder, while gender dysphoria says the stress caused by not being able to live as your true gender identity is what causes mental health issues.65 This change reflects shifting attitudes in the psychiatric community and an increasing acceptance of transgender identity as legitimate and not a problem in need of fixing.66
Gender dysphoria is defined by the DSM-5 as a clinically significant condition related to a strong inclination to be another gender; this can include a desire to change one’s genitalia or secondary sex characteristics.67 Not all gender nonconforming people have gender dysphoria.68 Gender dysphoria is about the distress associated with the discrepancy between someone’s actual gender identity and the gender they are perceived as by others.69 Not everyone experiences this distress.70 Despite gender dysphoria being an improvement over GID, it is controversial among some trans activists and psychiatrists because they believe it is stigmatizing.71
B. Current Federal Protections for Transgender People in Prisons
The main federal protections for the civil rights of incarcerated people come from the Eighth Amendment’s Equal Protection Clause and the Fourteenth Amendment’s Due Process Clause.72 The Americans with Disabilities Act (ADA)73 and the Prison Rape Elimination Act (PREA)74 have also been interpreted as useful tools to protect, and to advocate for the rights of, transgender incarcerated people, respectively. These will each be assessed on how they have been applied to the housing of transgender people in prisons.
The Eighth Amendment states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”75 This clause banning cruel and unusual punishment is the one most relevant to the discussion of how transgender people are housed in prisons.76 The purpose of the Eighth Amendment is to protect our values as a society that favors dignity and humanitarian standards for people in prison.77 Even though incarcerated people are denied many of the pleasures and comforts that free people have, the Eighth Amendment embodies our belief that they are still human beings deserving of dignity.78
In a 1994 Supreme Court case, Farmer v. Brennan, the Court considered the Eighth Amendment claim of a trans woman who was raped while in general population at a federal men’s prison.79 To have an Eighth Amendment claim for inhumane conditions of confinement, an incarcerated person must show that the condition is “sufficiently serious” and that prison officials acted with “deliberate indifference.”80 A condition can be sufficiently serious if it amounts to a denial of “life’s necessities.”81 Or, if it is about failure to prevent harm, an incarcerated person can show that the conditions of their incarceration “pos[ed] a substantial risk of serious harm.”82 A prison official is deliberately indifferent if the official knows that an incarcerated person faces a “substantial risk of serious harm,” but the official disregards that risk by failing to do something to mitigate it.83 Deliberate indifference is a subjective, not an objective, standard, which means it is not enough that an official should have known their action or inaction would cause harm.84 Deliberate indifference is a high standard that requires the official to not only have been actually aware of the relevant facts from which they could draw an inference that there was a “substantial risk of serious harm”, but they must also have actually drawn the inference.85
Incarcerated trans people who were harmed by other incarcerated people when housed in a facility according to their sex assigned at birth and not according to their gender identity have brought suits under the Eighth Amendment.86 Because these suits often occur after substantial harm has already been inflicted, these suits are retroactive, rather than proactive, solutions.87 Farmer held that the petitioner could show that prison officials had the culpable state of mind required for an Eighth Amendment violation by showing that those officials subjectively knew she was a member of an “identifiable group . . . frequently singled out for violent attack by other inmates,” which includes trans women.88 Some courts have held that an incarcerated person’s status as transgender is enough to establish that an official had subjective knowledge that the incarcerated person was part of a vulnerable group singled out for violence.89 Other courts have said that showing Bureau of Justice Statistics (BJS) data that trans women experience higher rates of sexual assault in prison can be evidence of subjective knowledge of a substantial risk of harm by prison officials.90
In addition to the Eighth Amendment, the Fourteenth Amendment also provides a basis to protect the rights of incarcerated people.91 The most important part of the Fourteenth Amendment for present purposes is the Equal Protection Clause.92 The meaning of the Equal Protection Clause is simply that people whose situations are similar should be treated similarly.93 State action violates the Equal Protection Clause where the classification is “arbitrary or irrational” and is based on nothing more than a desire to harm a group of people that is politically unpopular.94
Under the Turner standard, prisons used to be afforded a lesser degree of scrutiny for equal protection violations.95 To pass constitutional muster, a prison regulation only needed to be “reasonably related” to legitimate penological objectives and could not represent an “exaggerated response” to those concerns.96 Johnson v. California abrogated this standard for racial classifications in prisons.97 Since then, some circuits—including the Eighth Circuit,98 Ninth Circuit,99 and D.C. Circuit100—have followed Johnson and applied heightened scrutiny based on United States v. Virginia101 to equal protection cases based on gender in prison settings. Following Bostock v. Clayton County—which held that discrimination “because of” sex in Title VII includes discrimination against homosexual and transgender people—it is unclear if discrimination against transgender people is discrimination “because of” sex under the Equal Protection Clause.102 At least some courts have held that discrimination against transgender people is sex discrimination in the context of school bathroom policies103 and in a state law barring healthcare providers from performing gender confirmation surgery for someone under the age of eighteen.104
3. Americans with Disabilities Act
The last law that will be discussed here that can provide some protection to transgender people in prison is the ADA.105 The ADA protects people who are prevented from participating in a government program or service because of their disability status.106 The ADA defines the term “disability” as some type of impairment that is physical or mental and that “substantially limits [a] major life activit[y].”107 The ADA was held to apply to prisons in Pennsylvania Department of Corrections v. Yeskey.108 Specifically, Title II prohibits state entities from discriminating against people on the basis of a disability.109
Untreated gender dysphoria can impair one’s major life activities, so it is a good candidate to qualify as a disability.110 Mental impairments are included in the ADA’s definition of disability.111 Part of the statute explicitly states that the term disability does not include “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.”112 Courts have taken three approaches to interpreting the text of § 12211(b)(1).113 The first is the plain meaning approach, and the majority approach, which says that Congress intended that the ADA should not protect people with disabling and nondisabling gender identity disorders, such as gender dysphoria.114 The second approach says that gender dysphoria is not excluded from the ADA by § 12211(b)(1) so long as the gender dysphoria substantially limits a person’s life activities.115 This approach has been sharply criticized.116 The third approach says that judges do not know what causes gender dysphoria, so they do not know whether it is truly a gender identity disorder “not resulting from [a] physical impairment[].”117
4. Prison Rape Elimination Act and Housing and Urban Development
PREA prohibits placing transgender individuals in certain facilities based exclusively on their genitalia, requiring instead that the agency make an “individualized determination[].”118 PREA further requires that a transgender incarcerated person’s “own views with respect to his or her own safety shall be given serious consideration.”119 As of February 11, 2021, the federal department of Housing and Urban Development (HUD) issued a memorandum (HUD No. 21‑021) confirming that it is illegal to discriminate in housing based on sexual orientation and gender identity.120 As a result, LGBTQ+ people across the country can file housing discrimination complaints with HUD.121
C. Current Transgender Housing in Prisons by State
An increasing number of states outlaw discrimination on the basis of gender identity. Twenty-three states and the District of Columbia explicitly prohibit housing discrimination on the basis of sexual orientation and gender identity.122 These states are in the Northeast, West Coast, Rocky Mountain Region, and Midwest.123 No states in the Deep South prohibit discrimination on the basis of sexual orientation or gender identity.124 However, trans people overwhelmingly continue to be housed according to their sex assigned at birth, even in states that prohibit discrimination on the basis of gender identity.125 A small number of states have policies that house transgender incarcerated people according to their gender identity, including California, Connecticut, and, recently, New Jersey.126
Now looking at state laws that deal specifically with prisons, PREA mandates certain aspects of state prison policy. It states that incarcerated trans people need to be evaluated on a case-by-case basis and that consideration needs to be given to the trans person’s own views regarding their safety.127 In reality, most trans people are housed according to their genitalia.128 Prisons officials often only pay lip service to PREA compliance. When prison officials house trans people according to their genitalia, they need only recite that a trans person’s housing request was “serious[ly] consider[ed].”129 Much deference is paid to a prison’s views on security and housing.130 Therefore, often all that is needed is one administrator or one clinician to have regressive views on gender identity for every trans person to be categorically housed according to their sex assigned at birth.131
When trans people are housed according to their genitalia, this can pose many security and safety issues. As discussed previously, trans people are at a unique risk for victimization and assault while in prison.132 Several different solutions have been used to solve this problem, with varying degrees of success. They are discussed below.
The oldest method is to place trans people in restrictive housing. “Restrictive housing” is a term that refers to a variety of practices.133 What all of the practices have in common is that they involve keeping people locked in a cell for twenty-three or more hours per day and denying them many privileges given to other incarcerated people.134 The purpose of restrictive housing is to remove from the general population incarcerated people whom administration deem disruptive within the facility.135 This could be due to the incarcerated person’s own behavior, or the behavior of others toward them.136 Restrictive housing has been shown to have a dramatic impact on physical and mental health.137 The United Nations has condemned the use of long-term solitary confinement (greater than fifteen days) as cruel or inhumane treatment and torture.138
Because of the deleterious effects of this type of housing, prison reform movements and laws have aimed to reduce its use. PREA’s standards state that incarcerated people deemed at high risk for sexual assault—a group that includes trans people—should not be automatically placed in restrictive housing.139 If they are placed in this type of restrictive housing, it must be used as a last resort (i.e., there must be no alternative means to separate an incarcerated person from likely abusers),140 and they cannot be denied access to services, such as programming, education, privileges, or work assignments.141 Despite PREA’s insistence that restrictive housing only be used as a tool of last resort, many prison administrators default to holding trans people in restrictive housing to prevent any violent incidents.142
As an alternative to restrictive housing, some institutions and states have experimented with so-called transgender housing units. When in a cross-gender institution, trans people are housed in a special unit with each other.143 These units have been criticized for being stigmatizing.144 In addition, trans people in these units are sometimes not given equal access to prison programs and activities.145 PREA’s standards state that LGBTQ+ people cannot be placed in dedicated housing units solely on the basis of gender identity.146 Some jurisdictions still do this, including the New York City Department of Corrections’ jails, which have dedicated housing units for trans people.147
In New York City jails, transgender women are housed in a special transgender housing unit in the women’s jail.148 They are housed separately from cis women but can attend programming with other women and access female commissary items and packages.149 New York State prisons are less progressive. Currently, New York State has a policy of housing transgender people on a case-by-case basis, in compliance with PREA.150 There is no data on what percentage of trans women are housed in men’s prisons within the state. However, it is reported that at least some trans women are housed in women’s prisons in New York State.151 Formerly incarcerated trans women have reported being housed in men’s prisons, and some have endured many years of placement in solitary confinement.152 Efforts have been made to change policy on the county level, with recent successes being made in New York County.153
II. Interpretation of the GENDA
A. The Text and Legislative History
GENDA was passed in 2019 and accomplished two things: it added gender identity to New York’s hate crimes statute, and it made discrimination on the basis of gender identity unlawful.154 The portion of the statute relevant to the present discussion makes it unlawful for the owner or managing agent of a housing accommodation to discriminate in providing housing accommodations on the basis of gender identity.155 GENDA was first introduced in 2003, but it failed.156 Subsequently, GENDA was introduced every year from 2008 to 2019.157 It passed the state assembly each year but was not introduced in the New York Senate until January 2019.158 The bill passed the New York Senate at the same time as another bill that banned mental health professionals from subjecting minors to conversion therapy.159 The bill passed largely along party lines.160 The bill’s sponsor, State Senator Brad Hoylman,161 framed the passage of both GENDA and the conversion therapy ban as part of the State’s efforts to oppose the anti-LGBTQ+ policies of the Trump administration.162 He also said that the bill was passed in spite of Republican opposition, and that the sixteen-year delay in getting GENDA passed was due to this opposition.163
The stated purpose of the bill is to ensure that every individual has “an equal opportunity to enjoy a full and productive life.”164 It aims to combat the discrimination in employment and housing that prevents people from living full and productive lives.165 The bill also codifies the legislature’s view that New York courts were correct in holding that existing laws that prohibit sex discrimination also prohibit discrimination based on sex stereotypes or because an individual has or will transition.166 The bill further states that “failure to provide such equal opportunity . . . not only threatens the rights and proper privileges of [New York’s] inhabitants, but [also] menaces the institutions and foundation of a free democratic state.”167 Lastly, the bill mentions that the State is not promoting a particular attitude or way of life.168 It is unclear what is meant by this statement. Perhaps the State was attempting to rebut future criticism that it was attacking so-called “religious liberties.”169
The law was passed with widespread support from organizations such as the New York Chapter of the American Civil Liberties Union170 and the New York City Bar Association,171 which praised the GENDA bill for making housing and employment protections for trans people explicit in state law. The bill’s supporters characterized it as a step forward for human rights in the state, and an extension of previous efforts to improve LGBTQ+ civil rights, such as the push for marriage equality.172 This fits statements made by the bill’s sponsors who referenced their previous support for marriage equality when discussing their support for the bill.173 However, the bill has been criticized by some for its punitive nature in adding gender identity to the hate crimes statute.174 These critics say that placing additional years on a person’s sentence fails to combat the root causes of hate and contributes to mass incarceration.175 However, there has been little to no discussion about the implications of the law for incarcerated people.
There is no indication in the text of the statute or the legislative history that the authors of the bill or the New York State Legislature were intending to change the housing of transgender people in prisons when they passed this bill. However, such an outcome does fit within the purposes of the bill—to stop housing and employment discrimination that prevents trans people from living full and productive lives, to support the welfare of the public, and to support a free and democratic society.176 There is an argument that the statute would have no purpose in prison because prison, by its nature, prevents people from living full and productive lives. However, while prison removes many pleasures of life that a person may enjoy, people in prison may still find fulfillment, purpose, and productivity behind bars through education,177 religion,178 community service,179 and the arts.180 Discrimination in prison could prevent trans people from leading life to the fullest and most productive extent possible behind bars. Further, in prison, the need to protect the civil rights that are the foundation of a free and democratic society is even greater because of the vulnerable position in which incarceration places someone.181 Thus, applying this law to the context of prisons fulfills the general purpose as stated in the law.182
B. Interpretation of Gender Identity
The GENDA bill defines “gender identity or expression” as “actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.”183 Section 240.00 of New York’s Penal Law was amended by adding a new subdivision that states that “[g]ender identity or expression” includes someone’s “actual or perceived gender-related identity, . . . expression, or other gender-related characteristic . . . , including . . . the status of being transgender.”184 This definition is deliberately broad. Use of the words “but not limited to[] the status of being transgender” makes the legislature’s intent clear that the law does not just impact people who identify as transgender, but also people who behave in gender nonconforming ways that may allow them to be perceived as transgender or simply outside the cisgender norm. There is nothing in this definition to indicate that it could not apply to prisons.
Specifically in the prison context, the decisionmaker’s choice for who fits under this definition of gender identity or expression becomes a critical one. In prison, the way incarcerated people live is highly controlled and regulated, including when they sleep, when they wake up, what they eat, what they wear, how they keep their hair, how they do their makeup (or lack thereof), and what they do nearly every minute of the day.185 This total control has been linked to incarcerated people feeling depressed and powerless.186 This control extends to gender presentation; in prisons, especially in men’s prisons, traditional forms of gender expression are strictly enforced.187 This can make it difficult for all trans people, but especially trans women housed in men’s prisons, to express their gender identity.
If an incarcerated person wants an exception to be made to the normal strict prison regulations because of a disability, they must seek a disability accommodation.188 In New York, this means getting evaluated by the medical unit and then filling out a form, which is then approved or rejected by the Deputy Superintendent for Program Services.189 This is how an incarcerated trans person can get approved to have a feminine or masculine haircut, feminine or masculine undergarments, makeup, and other items.190 Because gender dysphoria is considered to be a disability, accommodations provided to them are evaluated by prison officials.191 Individual healthcare providers and administrators have tremendous discretion to approve or disapprove these accommodations.192 The amount of discretion they have makes it easy for providers or administrators with biases against trans people to deny accommodations to individuals with severe gender dysphoria based on their prejudice. This problem would hinder implementing GENDA in a prison context. In order for a trans person to be provided an appropriate housing accommodation, they would need to get approval and agreement from prison medical staff and administrators that they are indeed transgender.193 It is possible that even if the policy were implemented, no trans person would actually be transferred to another prison. Prison officials could simply declare that they evaluated all incarcerated transgender people and concluded that they are all not truly transgender.
C. Interpretation of Housing Accommodation
New York’s antidiscrimination statute defines “housing accommodation” as “any building, structure, or portion thereof which is used or occupied or is intended, arranged or designed to be used or occupied, as the home, residence or sleeping place of one or more human beings.”194 This definition of “housing accommodation” is broad. If we examine the plain meaning of the text, a prison is encompassed under the term “sleeping place.” The definition of a sleeping place is “a place used by a person for the purpose of sleeping.”195 Prisons and jails clearly fit under this definition because they are used by incarcerated people for sleeping.
If we apply a more careful reading of the text using canons of legal construction, we reach the same result. Using the surplusage canon of legal construction, we interpret statutes to give each word significance.196 No word should be interpreted to have a duplicative meaning as another word or phrase in the statute.197 If sleeping place simply meant a traditional home or residence—such as a house, apartment, or condo that is purchased or leased by the occupant—then the term “sleeping place” would violate the surplusage canon, because it would not provide additional meaning to “home” or “residence.” Therefore, the statute is meant to include more than the purchase or rental of houses, apartments, or condos and can be interpreted to include other sleeping places, such as halfway houses, shelters, and prisons.
The case law around the interpretation of this statute supports this conclusion. New York courts have found a variety of nontraditional housing to be within the term “housing accommodation” under the antidiscrimination law. A New York court found that a trans woman who was denied placement in a residential drug treatment program—which was being used as an alternative to incarceration—was denied a housing accommodation under section 296 of the New York Executive Law.198 Another New York court found that a twenty-four-bed foster care facility qualified as a “housing accommodation” for the purposes of alleging discrimination under section 296.199 Both of these settings, the residential drug treatment program and the foster care facility, are state-run or state-supported institutions that are free to those who stay in them, like prisons.200 Further, the argument that prisons are similar to the drug treatment facility is strong because people can be sentenced to the facility as part of a legal criminal process in the same way people are sentenced to prison.201
The biggest argument against this interpretation of New York’s law comes from previous interpretations of the Fair Housing Act (FHA). The FHA was passed by Congress in 1968 with the goal of preventing racial discrimination in housing.202 While judicial interpretations of the FHA do not control interpretations of equivalent state laws by state courts, state courts have used interpretation of the FHA to guide their interpretations of their own laws.203 Federal courts have interpreted the FHA to not include prisons, jails, and facilities like prisons and jails.204 In Garcia v. Condarco, the court put forward two arguments as to why prisons are not covered by the FHA.205 One argument was that Congress did not intend the FHA to encompass prisons because the purpose of the FHA was to provide freedom of choice in housing.206 The FHA would have no purpose in prison because prisons are designed to deprive people of choices.207 The other argument was that the primary purpose of a dwelling is to serve as a residence, whereas the primary purpose of a prison is to punish offenders, protect the community, and provide rehabilitation.208 Opponents to interpreting New York housing law to cover prisons would likely argue that the same reasoning the court used in Garcia applies here.
The court’s decision in Garcia was in error. While prison is certainly different from a house or apartment in many key ways,209 it functions as a residence for those living there. People in prison in New York can receive mail and packages,210 learn new skills and trades, get an education, raise their children up to one year after birth,211 and get married212—all at the prison. To say a prison is not a residence, especially for those serving long or life sentences, ignores the reality of how prisons function. But even if we accept the premise that prisons are not covered by the FHA, this interpretation is not controlling over New York law. Further, New York law uses the phrase “housing accommodation” in place of the word “dwelling” used by the FHA and many other state antidiscrimination laws.213 By using “housing accommodation” instead of “dwelling,” it could be argued that the New York legislature was signaling that it did not want the precedent around the interpretation of “dwelling” to attach to its law.214 Therefore, the term “housing accommodation” was intended to be more expansive and include more places than are included under “dwelling.”
III. Implications of the GENDA
A. Conflicts with Other Areas of New York Law and Policy
Interpreting section 296 to bar discrimination against trans people in prisons poses some conflicts with another part of section 296. Section 296(2)(b) states, “[n]othing in this subdivision shall be construed to . . . apply to the rental of rooms in a housing accommodation which restricts such rental to individuals of one sex.”215 One could argue that prison is a type of housing accommodation that restricts who occupies it based on sex. On the other hand, that section includes the “rental” of rooms, which does not apply to prisons because rooms are not rented in prison. Is this word significant? Does section 296 still apply to places like foster care homes, residential drug treatment programs, and prisons where beds are paid for with taxpayer money? Further, it is not clear what the meaning of “sex” is in this section. Does it refer to biological sex, or does it refer to gender?
Another law that could conflict with this interpretation of section 296 is section 500-b(8)(4) of the New York Corrections Law.216 This section prohibits a woman from being detained with a man in a jail or penitentiary.217 Depending on the statutory definitions of “woman” and “man,” this section could pose some problems depending on how it is interpreted. It is possible that this problem could be solved by housing trans women in single cells or in an area away from cis women while still allowing them to participate in programming and activities.
B. Conflict with the Prison Rape Elimination Act
As mentioned previously, PREA states that a transgender person’s own view regarding their safety must be considered when determining housing placement in prisons.218 This could pose a conflict with an interpretation of section 296 that says trans people must be housed according to gender identity. What if a trans person says they feel that they will be safer in a facility that matches their sex assigned at birth? If prison officials do indeed determine that a person is trans, section 296 as applied to prison would make it discriminatory not to treat them like a cis woman if they are a trans woman or like a cis man if they are a trans man.219 Because cis women are housed in women’s prisons, trans women would have to be housed in women’s prisons, with no consideration for their own views of their safety, thus conflicting with PREA.
C. How Applications of GENDA to Prison Will Impact Other States
Twenty-three states and the District of Columbia explicitly prohibit housing discrimination on the basis of sexual orientation and gender identity.220 Different states use slightly different language in their housing statutes. Some states, like Iowa and California, use the phrase “housing accommodation.”221 Others, such as New Jersey, Illinois, and Missouri, include places of “public accommodation” in their anti-housing-discrimination statutes.222 Still, other states, including Delaware, Utah, and Vermont, mirror the language of the FHA by using the word “dwelling.”223 To make matters more confusing, some states, such as Iowa, use both “dwelling” and “housing accommodation” in their anti-housing-discrimination statutes.224
The distinction between “dwelling” and “housing accommodation” is not entirely clear. The term “dwelling” in the FHA, which influences how states that model their antidiscrimination laws after the FHA interpret their own laws,225 was interpreted to exclude jails in Garcia.226 In Garcia, the court stated that the primary purpose of the FHA was to provide for freedom of choice in housing.227 The court concluded that this purpose did not apply in prisons and jails because these institutions are designed to punish people by depriving them of choices.228 The Supreme Court of Iowa, whose state statute also includes the term “dwelling,” agreed with the underlying reasoning of the Garcia court that the purpose of jails and prisons is to punish and not to be a residence and, therefore, anti-housing-discrimination laws do not apply.229 However, some states with antidiscrimination laws that are more broadly worded than the FHA may choose to interpret their laws to include prisons. For example, New Jersey’s law not only bans discrimination in “housing accommodation[s],” but also in places of public accommodation.230 The District Court for the District of New Jersey found that a prison was a public accommodation within the meaning of the statute.231 However, just because a state court could interpret its antidiscrimination statute more broadly than the FHA does not mean that it will. For example, a Missouri court found that prisons are not places of public accommodation under its antidiscrimination law.232
If section 296 is interpreted to apply to prisons, this could provide persuasive support for other states with similar language to interpret their laws to also apply to prisons. However, the impact is likely to be limited. Many states use language that is different from New York’s law,233 thus providing states an excuse to distinguish their laws from New York’s. Also, the interpretation in Garcia that the FHA does not include prisons and other states that have held that their laws do not include prisons provide a strong persuasive pull in the other direction.234 Therefore, a change in the way New York interprets its laws is unlikely to have a wider impact in the short term, although it may have an impact in the long term.
D. Public Policy Considerations
The strongest argument against housing trans people according to their gender identity is that it will harm safety.235 Opponents of allowing trans women—and it is usually only trans women that they are concerned about—into women’s prisons say doing so places cis women at risk of sexual assault.236 Recently, California enacted the Transgender Respect, Agency, and Dignity Act, which explicitly requires transgender people to be housed according to their gender identity.237
In an opinion piece published by a critic of the Act, the author said the Act put incarcerated cis women in danger because it would be used by opportunistic men to sexually assault them.238 The author interviewed several cis woman who had been incarcerated in California who were fearful the law would harm them.239 She stated that the cis women she talked to would be fine living with an actual transgender woman who had undergone gender-affirming surgery.240 This statement implies that these cis woman would not be comfortable living with someone who had not had gender-affirming surgery because that person would be more of a threat.
But is the completion of gender-affirming surgery really indicative that someone is trans? The United States Transgender Survey (USTS)241 reported that only twelve percent of trans women have had gender-affirming surgery.242 Fifty-four percent of trans women said they want gender-affirming surgery, and an additional twenty-two percent said they might want it.243 The Philadelphia Center for Transgender Health estimated the cost of gender-affirming surgery for trans women to be $25,600.244 Additionally, insurance often will not cover the cost of gender-affirming surgery.245 Fifty-five percent of respondents to the USTS reported being denied insurance coverage for transition-related surgeries.246 It seems that whether or not someone has undergone gender-affirming surgery is not based on whether they are really trans, but rather on how much money they have. In fact, the USTS found that the likelihood that a trans person has used surgery to aid their transition increases dramatically with income.247
Another public policy argument that will likely be made against this policy change is that implementing this rule takes discretion away from prison officials. Opponents of the policy may argue that the current policy allows prison officials to consider the safety of the trans person, the other incarcerated people, and the staff when deciding where to house trans people.248 If section 296 were applied to prisons, this discretion would be taken away.249 Opponents could also argue that prison officials know better than legislators—and law students writing notes—about how to run a safe and secure prison, and we should not second guess their judgment.
In a recent case, Edmo v. Idaho Department of Corrections, an analogous argument was made. The Ninth Circuit held that Idaho violated the Eighth Amendment by refusing to provide an incarcerated trans woman with gender-affirming surgery.250 The Ninth Circuit noted that the district court had made a narrow and not intrusive injunction—in compliance with the Prison Litigation Reform Act (PLRA),which says injunctive relief must be narrowly drawn251—in order to have a minimal effect on prison officials’ discretion over their own policies.252 The Ninth Circuit also chose to limit the scope of its decision to the plaintiff, declining to extend the scope to other similar cases and remove discretion from prison healthcare providers and administrators.253 From this decision, it is clear that courts and Congress, through its passage of the PLRA, have a desire to not take discretion away from prison officials in areas of prison policy.
These decisions about where to house trans people are being made not with a view for what will be the best outcome for everyone involved, but rather based on the biases that prison staff have toward trans people. As stated previously, trans people are frequently victimized inside prisons when housed according to their genitals.254 Yet, this is not taken as seriously as the hypothetical fear that trans women may harm women while in prison. If a trans woman has a history of committing sex crimes against women, that is used as an excuse not to house her in a female prison, but cis women who have committed sex crimes against women are always housed in women’s prisons without question.255 Thus, needing to house trans women in male prisons for the same crimes committed by cis women is not a good-faith argument. It is an excuse for prison officials to use their biases to inform public policy and not actual data.
Conclusion
The approximately twenty-eight thousand trans people that are incarcerated in United States jails and prisons every year256 are overwhelmingly placed in facilities based on their genitalia. This has led transgender people in jails and prisons to experience overwhelming rates of sexual and physical victimizations.257 A small but increasing number of states have chosen to make the policy decision to house people according to their genitalia, but it is possible to make this policy change with existing law. Over twenty-three states and the District of Columbia have laws that protect trans people from housing discrimination.258 Recently, New York also modified its antidiscrimination laws to include trans people.259
The thesis of this Note is that New York’s existing policy of not placing trans people in prisons that match their gender identity violates New York’s own laws. This thesis is supported by the text, purpose, and legislative history of the statute and existing New York legal precedent. The stated purpose of the bill is to ensure that every individual has “equal opportunity to enjoy a full and productive life.”260 This purpose extends to prisons where, while individuals may be deprived of many of the comforts of life, trans people are certainly entitled to have as good of a chance to have a full and productive life as other incarcerated people. The definition of “housing accommodation” includes the phrase “sleeping place,” which signals that the law is meant to include more than the purchase or lease of houses, apartments, and condos.261 New York courts have held that “housing accommodation” refers to other types of government-funded institutions, including a residential drug treatment facility and a foster care facility.262
As an increasing number of states continue to pass gender identity nondiscrimination laws, the need for clarification about how these laws impact prisons will become even more important. More scholarship is needed analyzing how these laws can and should be applied to prisons.