Maryland

STATE

Policy: Maryland Department of Public Safety and Correctional Services Executive Directive No. OPS 131.0001, Identification, Treatment and Correctional Management of an Inmate Diagnosed with Gender Dysphoria, effective Sept. 26, 2016.

J. Case Management.

(1) A Gender Dysphoric inmate’s housing placement shall be made on a case-by-case basis seriously considering the inmate’s opinion regarding the inmate’s safety and the inmate’s biological gender presentation and appearance considering:

(a) Intact external genitalia and secondary sex characteristics, such as pubic hair, chest hair, facial hair; and
(b) Specific factors, such as partial completion of sex reassignment surgery, removal or augmentation of breasts, or removal of testicles.
(2) Each inmate shall be evaluated on a case-by-case basis by the facility’s Security Chief and Case Management staff with support from the Director, Clinical Services and Deputy Director of Mental Health or specialty consultation considering safety, security, or operational issues.
(3) Mental health staff may provide input as to clinical recommendations related to housing of a Gender Dysphoric inmate to the managing official and Case Management staff as part of the Regional Treatment Team’s individualized treatment plan, however, final determination regarding housing placement is the responsibility of the managing official.
(4) If mental health staff input and recommendations and a managing official’s decision on placement of a Gender Dysphoric inmate conflict, the final decision shall be made by the Deputy Secretary for Operations, or a designee.

K. Custody Issues.

(1) A Gender Dysphoric inmate shall be confined in accordance with provisions established under the Prison Rape Elimination Act of 2003 and all related Department policy and procedures.
(2) Consistent with an inmate’s security level, a Gender Dysphoric inmate:

(a) Whose assigned gender is male and expressed gender is female and who is housed in a male facility is permitted to purchase and retain clothing items and other articles authorized for other male inmates at the facility, as well as items authorized for females at a female facility;
(b) Whose assigned gender is female and expressed gender is male and who is housed in a female facility is permitted to purchase and retain clothing items and articles authorized for other female inmates at the facility, as well as items authorized for males at a male facility; and
(c) May only purchase and retain personal property and commissary items that are authorized by established policy and procedures related to allowable inmate personal property.

Policy: Maryland Department of Public Safety and Correctional Services Executive Directive No. OPS 200.0006, Assessment for Risk of Sexual Victimization and Abusiveness, effective Oct. 19, 2023.

B. The PREA Coordinator shall ensure that procedures for using the approved screening instrument protocol at a minimum, require:

(1) That each managing official designate sufficient intake, custody, or case management staff to assess each IP for risk of sexual victimization or potential for sexual abusiveness within 72 hours of arrival at a facility;

(2) Case Management staff re-assess each IP within 30 days but not earlier than 7 days of the IP’s arrival at the facility for risk of victimization or potential for abusiveness based upon additional, relevant information received by the facility since the initial screening;

. . .

C. The PREA Coordinator shall ensure that the following issues are appropriately addressed in procedures for using information obtained during screening required under this directive:

(1) Screening information shall be considered:

(a) When making decisions related to housing, bed, work, education, and program assignments with the goal of separating IPs who are determined to be at high risk of being sexually victimized from IPs who are determined to be at high risk of being sexually abusive.

(b) When making individualized determinations concerning how to ensure the safety of each IP.

(c) When deciding, on a case-by-case basis, to assign a transgender or intersex IP to a facility for male or female IPs and in other housing and programming assignments and, on a case by case basis, determining if the placement or assignment:

(i) Ensures the IP’s health and safety; and

(ii) Presents management or security problems.

(2) Placement and programming assignments for each transgender or intersex IP shall be reassessed at least twice each year to review threats to safety experienced by the IP.

(3) A transgender or intersex IP’s own views with respect to personal safety shall be seriously considered. All screening and reassessment for PREA purposes shall be conducted in the presence of the IP being screened or reviewed.

. . . 

(5) A lesbian, gay, bisexual, transgender, or intersex IP may not be placed in a dedicated facility, unit, or wing created solely on the basis of such identification or status, unless placement in a dedicated facility, unit, or wing is established in connection with a consent decree, legal settlement, or legal judgment for the purpose of protecting IPs.

(6) Placement of an IP in special confinement housing shall only be determined in accord with provisions for special confinement housing established in the Case Management Manual.

LOCAL

Montgomery County

Policy: Montgomery County Department of Corrections and Rehabilitation Departmental Policy and Procedure Manual, Policy No. 3000-64, Implementation of the Prison Rape and Elimination Act (PREA), effective May 1, 2022.

V. Use of Screening Information:

(a) The Department shall use information from the risk screening to inform housing, bed, work, education, and program assignments with the goal of keeping separate those inmates at high risk of being sexually victimized from those at high risk of being sexually abusive.
(b) The Department shall make individualized determinations about how to ensure the safety of each inmate.
(c) In deciding whether to assign a transgender or intersex inmate to a housing unit or a programming assignment, the Department shall consider on a case-by-case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems.
(d) Placement and programming assignments for each transgender or intersex inmate shall be reassessed at least twice each year to review any threats to safety experienced by the inmate.
(e) A transgender or intersex inmate’s own view with respect to his or her own safety shall be given serious consideration.
. . .
(g) The Department shall not place lesbian, gay, bisexual, transgender, or intersex inmates in dedicated facilities, units, or wings solely on the basis of such identification or status, unless such placement is in a dedicated facility, unit, or wing established in connection with a consent decree, legal settlement, or legal judgment for the purpose of protecting such inmates.

Policy: Montgomery County Department of Correction and Rehabilitation Detention Services Division Policy and Procedure Manual Policy No. 1200-27, Gender Identification, Classification, and Housing, effective May 1, 2023. (No link available)

I. GENERAL INFORMATION:

A. It is a MCDOCR policy to provide services in a considerate and respectful manner to transgender and transsexual arrestees/inmates/residents, while ensuring that they are processed and housed safely and appropriately to the greatest extent practicable. For the safety, security, and order of the facility, the MCDOCR classifies and houses male and female offenders in separate housing units. As a starting point only, MCDOCR shall classify an arrestee/inmate who has male genitalia as a male and one who has female genitalia as a female. Although MCDOCR does not consider anatomical changes brought about by hormonal therapy to be changes that constitute a change of anatomical sex, the classification of an arrestee/inmate will depend on whether the arrestee/inmate has male or female genitalia, whether they present a management or security problem, and whether their health and safety can be ensured. Once an inmate is classified, they will be given a housing assignment based on that classification. The inmates housing assignment will consider the same factors as classification and will also be made on a case by case basis with input from mental health, medical, custody and security staff, and inmate services staff to best address the individual inmate’s circumstance.

B. To address the special needs of transgender and transsexual individuals, MCDOCR staff shall follow the guidelines in this policy to determine appropriate processing, classification, and housing based on safety and security needs, gender identity, and genitalia, anytime:

1. An arrestee/inmate indicates that they are a transgender or transsexual person at anytime during their intake/incarceration.

2. An arrestee’s/inmate’s gender identity, including appearance, overt expression, or behavior differs from their anatomical sex or genitalia (where staff has knowledge of the person’s anatomical sex).

3. A previous sex/gender designation made by any public entity, government agency, or law enforcement agency indicates that the arrestee/inmate is a transgender or transsexual person.

V. INITIAL INTAKE (CPU and Detention Center):
. . .

B. DETENTION CENTER

1. Regarding committed individuals whose gender expression appears to differ from their recorded sex/gender, staff shall:

a) Review identification and commitment documents for gender assignment and/or any notification that identifies the inmate as transgender, transsexual, or “vulnerable”.

b) If, after reviewing these documents and other types of notifications, the staff still cannot determine the individual’s anatomical sex, the staff shall ask the inmate for verification of the inmate’s genitalia. By “verification,” it is meant that staff will ask the person to tell them whether the person has male or female genitalia. Staff must conduct this inquiry in a private setting and in a professional manner to preserve confidentiality in order to avoid subjecting the
arrestee/inmate to abuse or ridicule.

c) If the inmate states that the arrestee has genitalia that are consistent with the arrestee’s recorded sex/gender, the staff’s inquiry into the inmate’s sex/gender shall cease, and staff will enter information about the arrestee’s gender expression and self-identification of anatomical sex during this event into the automated identification system.

d) If the inmate has confirmed that the inmate has genitalia that are consistent with the previously recorded sex/gender of the arrestee, but the arrestee is presenting a gender expression of the gender opposite to the inmate’s reported/recorded anatomical gender, staff will inform the inmate that the inmate is going to be classified in a manner consistent with the inmate’s reported/recorded anatomical gender. The housing assignment will be decided based on a case­by-case basis with input from mental health, medical, custody and security staff, and inmate services staff. A transgender or intersex inmate’s own view with respect to his or her own safety shall be given serious consideration.

e) If the inmate does not state that the inmate has genitalia that are consistent with the inmate’s recorded sex/gender, staff will determine (after consideration of all other data pertaining to the inmate’s identity) whether there is any material question about the inmate’s identity (separate from sex/gender). By “identity,” it is meant, “is the inmate the person who she/he has identified herself/himself to be,” or “is the inmate the person who is identified by that name in prior records.” For example, if fingerprint (or other biometric) information provides a positive identification of the inmate ( even if the inmate’s gender expression differs from the inmate’s recorded anatomical sex), then there is no material question about the inmate’s identity.

f) If the inmate is presenting a gender expression that differs from the inmate’s reported sex/gender, and if there is a material question about the inmate’s identity (other than the fact that the inmate is presenting a different gender expression than the inmate had presented in prior reportable events), staff shall immediately contact a supervisor. The supervisor shall inform the inmate that staff wishes to have the inmate examined by a licensed health care practitioner, for the purpose of determining whether the inmate has male or female genitalia, so that the basic identification of the inmate can be confirmed. If the inmate consents to be examined, the inmate shall be examined (in a private setting) by a MCDOCR nurse, who will conduct a physical examination to determine the anatomical sex of the inmate. If the inmate is presenting a female gender expression, and if the nurse then on duty is not female, the inmate will be asked if the inmate has any objection to being examined by a male nurse. If the inmate objects to being examined by a male nurse, the examination will be postponed until a female nurse is available. In the meantime, the inmate shall be temporarily held in a single cell and handled in a manner similar to that of a protective custody inmate throughout the duration of the intake/booking process.

g) If, in a situation where the inmate is presenting a gender expression that differs from the inmate’s reported sex/gender, there is a material question about the inmate’s basic identification, and the inmate refuses to submit to a physical examination, the inmate will be informed that if the inmate will not submit to an examination of genitalia, the inmate shall be temporarily held in a single cell and handled in a manner similar to that of a protective custody inmate throughout the duration of the intake/booking/temp housing process, until the identification of the inmate can be positively confirmed (by subsequent submission to an examination of genitalia, or otherwise).

h) In a situation where there is a material question about the inmate’s basic identification and the inmate has refused to submit to a physical examination of genitalia, the inmate will be asked if the inmate has a preference regarding the sex/gender of the pat­searching staff member.
. . .

i) If there is no question about the basic identification of an inmate whose gender expression differs from the reported sex/gender of the nmate and where the inmate has not stated that she/he has genitalia that are consistent with the inmate’s prior reported sex/gender, staff shall contact a supervisor. The supervisor shall inform the inmate that the arrestee is going to be classified and housed in a manner consistent with the inmate’s reported/recorded anatomical gender, unless the inmate wishes to voluntarily submit to an examination by a licensed health care practitioner, for the purpose of determining that the arrestee’s anatomical sex is consistent with the inmate’s gender expression. If the inmate consents to be examined, the inmate shall be examined (in a private setting) by a MCDOCR nurse, who will conduct a physical examination to determine the anatomical sex of the inmate. If the inmate is presenting a female gender expression, and if the nurse then on duty is not female, the inmate will be asked if the inmate has any objection to being examined by a male nurse. If the inmate objects to being examined by a male nurse, the examination will be postponed until a female nurse is available. In the meantime, for their safety, the inmate will be temporarily held in a single cell and held in a manner similar to that of a protective custody inmate throughout the duration of the determination. If the inmate’s anatomical sex is consistent with the inmate’s gender expression, then the inmate will be classified and housed in a manner consistent with the inmate’s gender expression. If the inmate’s anatomical sex is not determined to be consistent with the inmate’s gender expression, then the inmate will be housed and classified in a manner consistent with the inmate’s anatomical sex, as determined by the examining nurse, unless staff determines that the security and safety of the inmate and or the operation of the facility require consideration of a special housing assignment.

VI. HOUSING DURING INCARCERATION:

A. After completion of the initial intake process, an inmate identified as a transgender or transsexual person shall be housed in a single cell in a housing area consistent with the person’s anatomical sex/gender, as identified during initial intake and that their safety and health can be ensured. Staff shall document this information on an incident report (DCA#36). These decisions are made on a case-by-case basis to ensure the management, health and safety of the inmate are taken into consideration as well as the inmates perception of vulnerability.

B. All identified transgender and transsexual inmates will be classified and assigned housing based on their safety/security needs, gender identity, and genitalia. Classification staff shall assess all identified transgender and transsexual inmates for potential vulnerability if housed in general population.

C. An identified transgender or transsexual inmate will be housed in protective custody when there is reason to believe the inmate presents a heightened risk to themselves or to others, when the inmate expresses concern that they will be vulnerable to victimization in any other housing unit, or when staff makes an assessment that there is no alternative to keep them safe. The assignment shall be only for the period during which the heightened risk and/or concern exists. Inmates in administrative housing, protective custody, or medical housing areas shall have access to programs and services consistent with that status.

D. Housing status for transgender and transsexual inmates will be re-assessed at least every six months, or more frequently if the circumstances dictate.