Massachusetts
STATE
Policy: Mass. Gen. Laws. Ch. 127 § 39A(c), Segregated Units, effective Dec. 31, 2018.
The fact that a prisoner is lesbian, gay, bisexual, transgender, queer or intersex or has a gender identity or expression or sexual orientation uncommon in general population shall not be grounds for placement in restrictive housing.
Policy: Mass. Gen. Laws Ch. 127 § 32A, Prisoner Gender Identity, effective Dec. 31, 2018.
A prisoner of a correctional institution, jail or house of correction that has a gender identity, as defined in section 7 of chapter 4, that differs from the prisoner’s sex assigned at birth, with or without a diagnosis of gender dysphoria or any other physical or mental health diagnosis, shall be: . . . housed in a correctional facility with inmates with the same gender identity; provided further, that the placement shall be consistent with the prisoner’s request, unless the commissioner, the sheriff or a designee of the commissioner or sheriff certifies in writing that the particular placement would not ensure the prisoner’s health or safety or that the placement would present management or security problems.
653.03 MANAGEMENT AND PLACEMENT
At the time of their commitment, sentenced individuals are court ordered into the custody of the Department of Correction and are transported to the Department’s reception center for males or females based upon the court’s order.
Once committed to the Department of Correction, placement decisions, classification, and other programming assignments for gender non-conforming inmates shall be considered on a case-by-case basis. Factors which shall be considered include, but are not limited to, the inmate’s stated request, whether a placement would ensure the inmate’s health and safety, and/or whether the placement would present management or security problems.
Placement and programming assignments for each gender non-conforming inmate shall be reassessed at least twice each year in order to review any threats to safety experienced by the inmate.
A gender non-conforming inmate’s own views with respect to his or her own safety shall be given serious consideration.
1. Initial Classification and Placement: For all new commitments, an IMS Housing Risk Factor Assessment is completed which examines issues of risk of victimization and risk of violence/predatory behavior/abusiveness. Should an inmate identify as gender non-conforming, the additional process of the verification of the gender non-conforming status shall commence as outlined in 103 DOC 653.04. The findings of the verification of the gender non-conforming status process, along with the Housing Risk Factor Assessment, shall inform housing, work, education, and program assignments.
A. Bi-Annual Review: A Housing Risk Factor Assessment will be completed at least every six months for all gender non-conforming inmates. In preparing for the status review, medical staff, mental health staff, and other security personnel will collaborate to assess appropriate programming and placement within the agency for each gender non-conforming inmate. The review shall assist with decisions regarding housing, work, education, and program assignments and shall focus on individual safety. Recommendations shall be considered on a case by case basis, and shall consider whether placement will ensure the inmate’s health and safety, and whether the placement would present management or security issues. Security level, criminal and discipline history, medical and mental health assessment of needs, vulnerability to sexual victimization and potential of perpetrating abuse based on a history of being sexually or physically abusive, shall all be considered. The inmate’s own views with respect to his or her own safety shall also be given serious consideration. This bi-annual review shall include a review of any threats to safety experienced by the inmate.
In addition, specific cases with partial completion of sex reassignment surgery, removal or augmentation of breasts, removal of testicles, etc., shall be evaluated on a case by case basis by the Program Medical Director. In the event that the Program Medical Director’s recommendation may potentially present security, safety, or operational difficulties within the correctional environment, the Director of Behavioral Health shall refer the request to the Deputy Commissioner of the Prison Division and the Deputy Commissioner of Clinical Services and Reentry for a security review, pursuant to 103 DOC 653.08, Security Review.
B. Internal Placements: Site mental health directors may provide input as to their clinical recommendations related to housing gender non-conforming inmates within their respective institutions. Consideration of these clinical recommendations should be given by the Department of Correction when making determinations regarding such issues; however, final determination regarding internal housing placement is the responsibility of the Superintendent.
C. Gender non-conforming inmates will not be housed in dedicated institutions, units, or wings solely on the basis of their gender non-conforming identification or status, unless such placement is in a dedicated institution, unit, or wing established in connection with a consent decree, legal settlement, or legal judgment for the purpose of protecting such inmates.
653.04 VERIFICATION OF GENDER NON-CONFORMING STATUS
1. If, upon admission to the Department, or at any time during an inmate’s incarceration, an inmate self-identifies as being gender non-conforming, a institution-based medical provider, or qualified mental health professional assigned to the inmate, shall review the inmate’s gender non-conforming status to determine whether the inmate’s gender identity is sincerely held as part of the inmate’s core identity. This assessment shall include a thorough record review including obtaining releases of information for external providers as well as a face to face interview. Gender identity may be verified by providing to the medical provider or qualified mental health professional evidence of the inmate’s gender non-conforming status which may include, but is not limited to, medical history, mental health history, care or treatment of the gender identity, consistent and uniform assertion of the gender identity, or any other evidence that the gender identity is sincerely held.
For persons returned to the custody of the Department of Correction with a previously confirmed gender non-conforming status, a new gender identity verification process shall not be required unless indicated by the contracted medical provider or qualified mental health professional assigned to the inmate.
2. If an inmate’s gender non-conforming status is denied by the contracted medical provider or qualified mental health professional assigned to the inmate, the inmate may appeal to the Statewide Medical Director within thirty (30) days of the denial. The Statewide Medical Director shall issue his/her/their decision for the appeal within sixty (60) days of receipt of the appeal. The grounds for the appeal decision shall be in writing and given to the inmate. The Statewide Medical Director’s decision is final.
If an inmate’s gender non-conforming status is denied, the inmate may request a re-verification process by the institution-based medical provider or qualified mental health professional assigned to the inmate after one year of the prior denial.
653.08 SECURITY REVIEW
1. A gender non-conforming inmate may request to be housed in a institution of the gender with which the inmate identifies. Upon receipt of the request, the site administration shall notify the Department’s Director of Behavioral Health. In the event that a request may potentially present security, safety, or operational difficulties within the correctional environment, the Director of Behavioral Health shall refer the request to the Deputy Commissioner of the Prison Division and the Deputy Commissioner of Clinical Services and Reentry for a security review. The security review shall take into account the inmate’s individual history of incarceration and present circumstances.
2. Arrangements for transition to the institution of the gender with which the inmate identifies shall occur unless the Commissioner certifies in writing that the particular placement would not ensure the inmate’s health or safety or that the placement would present management or security problems.
The Commissioner shall articulate specific and justifiable reasons based on security, safety and/or operational concerns, in writing. The security review shall be completed within ninety (90) calendar days of the referral from the Director of Behavioral Health.
Screening for Risk of Victimization and Abusiveness
In accordance with training, when booking detainees, members shall screen all detainees to assess their risk of being sexually abused by other detainees or sexually abusive toward other detainees. Members shall also advise detainees of the Department’s zero tolerance policy toward all forms of sexual abuse and sexual harassment towards any detainee. The screening and the advisement of the Department’s zero-tolerance policy shall both be documented in RAMS/Department Records Management System.
If after screening, the member determines that the detainee may be at risk, the detainee shall be housed alone in a holding cell for the duration of his/her detainment at a State Police facility. This includes post-screening transportation in a Department vehicle to/from court, jail, prison, or other agency.