North Carolina
STATE
(M) The transgender or intersex offender, upon self-disclosure, may be housed temporarily in a single cell or bed with officer visibility until the Facility Transgender Accommodation Review Committee (FTARC) convenes and determines permanent housing placement based on the offender’s concerns for safety, request for accommodations, screening information, and high-risk status.
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(3) Use of Screening information:
(A) The information from the screening for risk of victimization and abusiveness shall be used to inform housing, bed, work, education, and program assignments with the goal of keeping separate those offenders at high risk of being sexually victimized from those at high risk of being sexually abusive.
(B) The following procedures will be followed to manage housing and bed assignments:
(i) Any offender identified as a high-risk abuser or high risk of being sexually victimized shall be restricted from double-cell housing (5-ACI-2C-02).
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(iv) The facility shall make individualized determination for bed assignments, based on facility housing designs, to ensure the safety of each offender.
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(E) In deciding whether to assign a transgender or intersex offender to a facility for male or female offenders, and in making other housing and programming assignments, the agency shall consider on a case-by-case basis whether a placement would ensure the offender’s health and safety, and whether the placement would present management or security problems.
(F) Placement and programming assignments for each transgender or intersex offender shall be reassessed by the case manager at least twice each year to review any threats to safety experienced by the offender.
(G) A transgender or intersex offender’s own views with respect to his or her own safety shall be given serious consideration.
(I) The agency shall not place lesbian, gay, bisexual, transgender, or intersex offenders 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 offenders (5-ACI-4B-34).
(e) When a transgender offender is transferred within the system, PREA considerations will be addressed immediately upon arrival to the receiving facility. Accommodations granted previously will continue pending review by the Facility TARC.
(f) A transgender offender requesting accommodation shall be scheduled for an interview with the Facility TARC.
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(g) The Facility TARC process should reflect individualized consideration and review. For this reason and to safeguard medical privacy, offenders should be interviewed separately and not as a group.
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(h) The transgender offender shall be informed of any Facility TARC privacy and housing recommendations within 48 hours of the meeting.
(i) The offender will be afforded the opportunity to appeal decisions made by the Facility TARC. The offender can write a letter of appeal to be submitted to the Facility TARC chair who will submit the appeal to the Division TARC for review.
(j) The following procedures will be followed for all transgender offenders who either self-identify or are referred for review:
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(A) When the transgender offender requests accommodation related to their gender identity, the multidisciplinary Facility TARC will convene. A diagnosis of Gender Dysphoria is not required for an offender to be considered for accommodation, unless requesting the initiation of medical interventions.
(B) The Facility TARC will convene to review both routine and non-routine accommodation requests. Non-routine accommodation requests will be reviewed and deferred to the Division TARC.
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(F) All accommodation requests will be reviewed on a case by case basis considering the offender’s medical and mental health history as well as risk safety profile.
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(E) Facility housing considerations – Offender may be approved for alternate housing assignments within the facility to enhance staff supervision.
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Non-routine accommodation requests shall be reviewed by the Facility TARC and forwarded to the Division TARC for review. . . . When reviewing non-routine accommodations, the Division TARC will consider on a case-by-case basis whether an accommodation will ensure the offender’s health and welfare without compromising facility safety and security.
All accommodation requests for surgical intervention or gender-identity-consistent facility transfer shall be reviewed by the Division TARC with recommendations referred to the Deputy Secretary of Institutions and Deputy Secretary of Comprehensive Health Services for review and determination. After gender-identity-consistent facility transfer, subsequent transfers will be managed according to Division guidelines.
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The Division TARC will review non-routine accommodations to include but not limited to:
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(B) Gender-consistent facility assignment – Decisions to transfer an offender to a facility consistent with their gender identity are not permanent and will be continually reassessed for safety and security considerations.
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.4307 ADDITIONAL CONSIDERATIONS AND PROVISIONS
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(4) An offender shall not be placed in Restrictive Housing on the basis of gender identity alone (5-ACI-4B-34).
.2604 DEFINITIONS
(a) Disability . . . (4) The following conditions do not constitute disabilities: transvestitism, transexualism . . . gender identity disorders not resulting from physical impairments. . .
.2605 POLICY
It is the policy of Prisons to establish procedures for an offender to request an accommodation for a qualified disability that affects a major life activity and to ensure that:
(a) Every offender, including an offender with a qualified disability, shall be housed in a manner that provides for their safety and security(5-ACI-2C-11);
(b) Reasonable accommodations are made only if the accommodations pose no direct threat to the individual requesting the accommodation or cause an undue hardship on Prisons;
(c) Reasonable accommodations shall be made to the physical structure of housing for an offender with a qualified disability to accommodate for the physical limitations of the disabled offender and facilitate the offender’s inclusion in facility life(5-ACI-2C-11);
(d) The Facility ADA Coordinator will ensure visually impaired offenders are assigned to bottom bunks in their assigned living area.
(e) Reasonable accommodations shall be made to facility jobs, programs, activities, and services to permit accessibility by a qualified offender with a disability(5-ACI-2C-11);
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Please note, the Fourth Circuit rejected a reading of the ADA “that would exclude gender dysphoria from the ADA’s protections.” See Williams v. Kincaid, 45 F.4th 759 (4th Cir. 2022).
LOCAL
Mecklenburg County
IV. Procedure:
A. Within 72 hours of incarceration, excluding holiday and weekends, the Initial Assessment Team (IAT) will review all collected information provided form the Intake and booking process; and that provided by the resident(s). Additionally, the Initial Classification Questionnaire (ICQ) shall be completed to further substantiate determinations made on identified LGBTI residents. Moreover, the residents’ current charges, DCI, and past or present institutional behaviors, past or present history of Sexual Assaultive offenses will be considered as part of the housing process.
B. The IAT will make notification to the Classification Agent of an identified LGBTI resident whose gender is to be determined.
C. The Gender Committee shall conduct a hearing, which is to be documented in the Offender Management System (OMS). The Committee shall consider all available information and records when determining gender and appropriate housing. Identified LGBTI residents shall not be placed in segregated or protective custody based solely on their gender and physical characteristics. The identified LGBTI resident shall be present for the hearing regarding both gender designation, classification level, and housing; and has the right to speak and present information.
D. The Committee shall determine if the resident will be housed in general housing or protective custody consistent with the determined gender identity and/or genitalia. The Committee shall document the decision/recommendation action within the Medical section of OMS. The Major of the Facility shall be provided the information, and may approve, override, or amend the Committee’s decision, in writing, to the Gender Committee. Once final determination has been deemed, the affected resident shall be made aware of the findings in writing by the Committee or Classification Section.
E. IAT will assess residents based on factual criteria and apparent needs, rather than personal biases, conflicts, values, or prejudices.
F. During the ICQ interviews, IAT members shall screen each LGBTI resident for individual placement decisions that prioritize the physical safety and emotional wellbeing of the residnet. Additionally, Form: CR 4.35 Attachment #1 shall be completed.
G. Additionally, residents will be assigned to housing units consistent with their custody levels, and with guidance from the Gender Committee.
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V. Housing Managers:
A. Any LGBTI resident who remains in custody after their initial court appearance will be assigned a Housing Manager (HMR) based on housing location.
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C. The HMR shall also consider each LGBTI resident’s own views with respect to his or her safety while incarcerated.
D. Any identified LGBTI resident the HMR feels may be high risk for sexual victimization shall not be placed in involuntary segregated housing unless an assessment of available alternatives has been made, and there is no available alternative means of separation from likely abusers.
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F. The Gender Committee or HMR shall assign such residents to involuntary segregated housing only until an alternative means of separation from likely abusers can be arranged, and such an assignment shall not ordinarily exceed a period of 30 days.
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K. When making housing placement decisions, consider the host of issues specific to LGBTI residents.
H. Detention Classification and Housing:
1. Housing decisions of LGBTQIA residents will be based on the resident’s safety and well-being and not the gender identity of the individual.
2. MCSO will not place lesbian, gay, bisexual, transgender, or intersex residents in dedicated facilities, units, or wings solely on the basis of such identification or status, unless such a placement is in a dedicated facility, unit, or wing established in connection with a consent decree, legal settlement, or legal judgement for the purpose of protecting such residents.
3. All programming and required services will be determined on a case by case basis when residents transitioning (male to female or female to male) are classified to a facility.
4. The MCSO Gender Review Committee will conduct a comprehensive review of transgender or gender variety persons in custody to ensure an appropriate level of services and care.
Wake County
II. Policy
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To prevent abuse and gender identity discrimination, a resident’s gender identity will be a factor in decisions relating to booking, classification, housing, and searches.
VI. Resident Housing
Individuals identified as transgender, intersex, or gender-nonconforming shall be housed in accordance with PREA Standards.
A. Classification Interview
Individuals that identify as transgender, intersex, or gender-nonconforming shall be interviewed by the PHC, within three working days or before the expiration of the individual’s placement on medical quarantine (whichever is greater), and a Housing Classification shall be developed.
1) As part of the housing assessment for vulnerability, jail staff shall ask the resident his or her own opinion of his or her vulnerability in the general jail population and whether the resident would feel safer in a men’s or a women’s unit, in addition to the assessments made during standard resident classification.
2) The resident MAY be temporarily placed on protective custody/administrative segregation or housed in an individual cell until a housing decision is made by PHC.
B. Individualized Classification Designation
All decisions determining where transgender, intersex, or gender-nonconforming individuals will be housed, must be made on a case-by-case basis by the PHC. Transgender, intersex, or gender non-conforming individuals must be assessed individually to determine whether they should be housed with women or men and whether in general population or protective custody/administrative segregation.
1) Classification and placement of transgender, intersex, or gender nonconforming individuals shall not be determined solely based on the individual’s sex at birth, identity documents, or physical anatomy.
2) A transgender, intersex, or gender-nonconforming individual’s gender identity and personal safety MUST be considered when determining their housing location. Additional factors including housing availability, staff availability, security, and safety needs MAY also be considered.
3) A mandatory incident report will need to be completed if the gender identity is unknown.
C. Protective Custody (i.e., Administrative Segregation)
Transgender, intersex, or gender nonconforming individuals shall only be housed on protective custody/administrative segregation when there is reason to believe the resident presents a heightened risk to himself or herself or to others, and only for that limited period during which the heightened risk exists.
1) Grounds for protective custody/administrative segregation may also exist if a transgender resident has been, or is in fear of, vulnerability to victimization in any other housing setting, including shared vulnerable resident housing. If a resident requests protective custody/administrative segregation that request shall be honored.
2) Housing for transgender residents on administrative segregation shall be reviewed every 30 days.
D. Reassignment Surgery/Legal Sex Change
Notwithstanding any requirements under this section, if the individual has completed reassignment surgery and legally changed their sex, then they should be housed with the corresponding sex.