North Dakota
STATE
4. POLICY: The Department shall provide access to evaluation, housing placement, and access to services for adults in custody who claim to be undergoing or claim to have undergone treatment for Gender Dysphoria; adults in custody who appear to be, or claim to be, gender-non-conforming; and adults in custody having other clinical conditions in which the biological sex or gender assignment is unclear. The Department shall offer appropriate gender-related behavioral health services and other medically care throughout the adult in custody’s incarceration. (4-4305)
5. PROCEDURES:
A. Gender Identity Committee:
. . .
4. Functions:
a. The committee will discuss any requests from the adult in custody regarding specific treatment, services, housing, and property and determine the course of action.
. . .
c. The committee will develop an individual management plan that reflects specialized housing and property needs, if applicable.
d. If applicable, the Gender Liaison will work with the facility Treatment Coordinator to assign appropriate staff to develop an individualized treatment plan to address the adult in custody’s specific medical, behavioral health, and adjustment needs and review and the facility Treatment Coordinator will approve the plan prior to its implementation.
. . .
4. Adults in custody who identify as gender non-conforming or transgender, but who do not meet criteria for a Gender Dysphoria diagnosis, may be given special property or housing accommodations based on their individual needs and safety considerations or by their request as required by PREA related policy. These may be done through the committee’s development of an individualized plan without creating an individual treatment plan.
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G. Placements of Adults in Custody:
1. In general, adults in custody are placed in facilities, in accordance with their sex assigned at birth, as determined by the gender indicated on their most recent form of government-issued identification.
2. Exceptions may be made to routine housing practices for adults in custody who identify as gender non-conforming or transgender based on individual needs and the safety concerns of others.
15. § 115.41/115.341 Screening for Risk of Sexual Victimization and Abusiveness.
a. The Prison Rape Elimination Act (PREA) Intake/Admission Screening (NDSP only) must be completed within 24 hours of admission for risk of being sexually abused by other facility residents or being sexually abusive toward other facility residents. Housing assignments are made accordingly.(4-4281-2M) [115.41 (a)-1} [115.41 (b)-1} {115.41 (c)-1]
b. The Prison Rape Elimination Act (PREA) Intake/Admission screening (NDSP only) considers the following criteria to assess facility residents for risk of sexual victimization and sexual abusiveness: [115.41 (d)-1] [115.41 (e)-1]
. . .
7.) How does the facility resident perceive their sexual orientation; heterosexual; gay; lesbian; bisexual; transgender; intersex; or gender nonconforming?
. . .
c. Upon completion of the Prison Rape Elimination Act (PREA) Intake/Admission Screening (NDSP only) unit staff must review for housing assignment.
d. Prison Rape Elimination Act (PREA) Assessment/Reassessment Screening form will be utilized by transitional planning staff or designee within 30 days of the facility resident’s intake in the orientation unit and/or before the facility resident transfers from the orientation unit, whichever comes first. This form will also be utilized to conduct reassessments annually by an assigned case manager or designee at the same time the facility resident undergoes custody level reclassification. A reassessment should also be completed when there is a triggering event such as a substantial PREA related incident or the facility resident self-discloses an act of sexual predation or victimization. If a facility resident is identified as a transgender or intersex, a reassessment shall be completed by the assigned counselor or designee every six (6) months. If a reassessment is warranted because of a referral, request, or receipt of additional information that bear on the facility resident’s risk of sexual victimization or abusiveness, any staff member may refer a facility resident for reassessment.[115.41 (f)-1], (f)-2]
. . .
g. Facility residents may not be disciplined for any refusal or nondisclosure during screening regarding gender identity, sexual orientation, intersex condition, disability status, or prior sexual victimization. [115.41 (h)-1]
16. § 115.42/115.342 Use of Screening Information.
a. In deciding whether to assign a transgender or intersex facility resident to a facility for male or female facility residents, and in making other housing and programming assignments, a multi-disciplinary team including staff represented from security, medical, unit management, behavioral health and administration staff shall consider on a case-by-case basis whether a placement would ensure the facility resident’s health and safety and whether the placement would present management or security problems. [115.42 (c)-1]
b. The DOCR shall not place lesbian, gay, bisexual, transgender, or intersex facility residents in dedicated facilities, units, or wings solely on the basis of such identification or status.
c. Adults – Refer to Policy 4A-01, Admission, Reception and Orientation, and Transfers; Policy 4B-07, Gender Non-Conforming Persons; PREA Rating Assessment Manual.
d. Juveniles – Refer to Policy 4A-01, Admission, Screening, Orientation, and Transfers; Policy 4B-07, Gender Non-Conforming Persons.
f. Staff may not search or physically examine a transgender or intersex adult in custody for the sole purpose of determining the adult in custody’s genital status. [PREA 115.15]
1.) If the adult in custody’s genital status is unknown, it may be determined through conversation with the adult in custody, by reviewing medical records, or, if necessary, by learning that information as part of a broader medical examination conducted in private by a medical practitioner.
Additional Policy: North Dakota Corrections and Rehabilitation Policy No. and Security 1C-34, Transgender Employee, effective Sept. 6, 2019, revised May 24, 2022.