New Jersey

STATE

Policy: New Jersey Department of Corrections Internal Management Procedure No. PCS.001.TGI.01, Gender Identity Housing, effective Dec. 15, 2019, revised Oct. 11, 2022, scheduled for review on or about Oct. 1, 2024 or as necessary.

III.  POLICY  

It is the policy of the NJDOC to address the needs of transgender, intersex, and non-binary incarcerated persons in a manner consistent with federal Prison Rape Elimination Act (PREA) standards, the New Jersey Law Against Discrimination (NJLAD), and in accordance with departmental regulations, policies and procedures.  

Once the NJDOC learns and confirms an incarcerated person’s gender identity, using the procedures laid out in this document, it shall determine the incarcerated person’s facility and housing unit assignment, with a rebuttable presumption that the incarcerated person will be housed in line with their gender identity. The PREA Accommodation Committee (PAC) may deviate from the presumptive placement following a thorough individualized review as set forth in this policy.

IV. PROCEDURES

A. Identifying Incarcerated persons’ Gender Identity 

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5. Within three business days of notification, the facility IPCM shall confidentially meet with the incarcerated person. During this meeting, the incarcerated person will be afforded the opportunity to express their own views with respect to safety and housing and will be notified of the rights and accommodations available to them under PREA and under this Policy, including referral to the relevant section of incarcerated person handbook or other written summary. The incarcerated person will complete the PAC Gender Identity Information form.

6. The IPCM will contact the Central Office PREA Compliance Unit to schedule a PAC housing/program review in accordance with Part IV.B. below.

7. In addition to information provided by the IPCM, the incarcerated person handbook for each facility will contain a statement providing incarcerated persons with information on how to exercise their rights under this policy, including but not limited to how an incarcerated person may request a meeting with the IPCM, and how to request housing in line with the incarcerated person’s gender identity.

8. Transgender, intersex, or non-binary incarcerated persons will be housed in single cell status until final housing and programming assignments are made in accordance with Part IV.B below.  However, single cell status as used in this paragraph shall not mean isolation or restrictive housing.  This paragraph shall not prevent an incarcerated person from requesting and being provided voluntary protective custody, or placement in the vulnerable housing unit, until the final housing and programmatic assignments are made if the incarcerated person feels unsafe in their current placement.

B. Housing and Classification Reviews

1. The NJDOC considers whether the particular placement would present management or security problems in all housing and programmatic assignments.  This consideration will be applied equally to all incarcerated persons, regardless of their sex or gender identity, and may justify a deviation from an incarcerated person’s presumptive placement in line with gender identity for cisgender, transgender, intersex, and non-binary incarcerated persons alike.  Although this consideration therefore applies to Part IV.B of this document, under no circumstances will a transgender, intersex, or non-binary incarcerated person’s placement in line with their gender identity be considered a management or security problem solely due to their gender identity.

2. Once the NJDOC learns and confirms the gender identity of an incarcerated person using the procedures set forth in this document, it shall determine the incarcerated person’s facility and housing unit assignment, with a rebuttable presumption that the incarcerated person will be housed in line with their gender identity. The PAC may deviate from the presumptive placement only after an individualized, case-by-case determination that the placement would jeopardize the incarcerated person’s health and safety, and/or significantly impact the safety of others in the potential receiving facility. Any such determination shall be set forth in writing and shall state the reasons for the deviation.

a. Pursuant to PREA Standard 115.42(g), the Department shall not place lesbian, gay, bisexual, transgender or intersex incarcerated persons 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 purposes of protecting such incarcerated persons.

b. In deciding whether to deviate from the presumptive placement, via a PAC hearing, the PAC shall provide a specific individualized written review, and give consideration to the potential impact each of the following has on the safety of the individual person or others:

i. Incarcerated person’s own views regarding housing and safety;

ii. Vulnerability to sexual victimization;

iii. Current gender expression; 

iv. Criminal or institutional disciplinary history, which should be taken into consideration to evaluate likelihood of perpetrating sexual abuse, or other violence, either against the incarcerated person seeking to be housed in line with their gender identity, or by the individual against the potential receiving facility population wherein the individual would be housed in line with their gender identity;

v. Behavioral, medical and mental health needs and recommendations;

vi. Reproductive considerations;

vii. Any other relevant information.

c. In some cases, NJDOC may learn and confirm that an incarcerated person’s gender identity is neither male nor female. In such cases, the incarcerated person shall be housed in the most appropriate placement, taking into consideration the requirements and factors set forth in Section IV(B)(2)(a-c).

3. A transgender, intersex, or non-binary incarcerated person’s housing assignment will be reviewed by the PAC as follows:

a. At all times, the PAC will ensure that the incarcerated person’s facility assignment complies with Parts IV.B.1-2 of this document. If the PAC has a substantiated, credible, and non-discriminatory basis for believing that an incarcerated person is not sincere in their assertion of their gender identity and is asserting it for an improper purpose, the PAC may ask further questions to better understand the incarcerated person’s identity and offer the incarcerated person a fair opportunity to present additional information.  The PAC must make a written record of the basis for its belief, which shall be included in the incarcerated person’s classification file and available to the incarcerated person should they challenge the PAC’s decision pursuant to Part IV.B.3(e) or other procedures.

b. Because multiple classifications and placements exist for male incarcerated persons within male facilities and female incarcerated persons within female facilities, in deciding the specific placement for a particular incarcerated person within a facility in line with their gender identity, the PAC will consider:

i. All aspects of an incarcerated person’s social and medical transition when formulating recommendations to address safety and privacy concerns, including factors such as behavioral history, institutional adjustment, overall demeanor, and likely interactions with other incarcerated persons; and the incarcerated person’s own views with respect to safety.

ii. Whether a placement would threaten the orderly operation, management and security of the correctional facility and/or pose a risk to other incarcerated persons in the facility (e.g., considering incarcerated persons with histories of trauma, privacy concerns, etc.).   This consideration will be applied equally to all incarcerated persons, regardless of their gender identity.

iii. The following factors on a case-by-case basis: 

1. The Gender Identity Information Form, if completed;

2. custody level and sentencing information;

3. criminal history;

4. institutional disciplinary history;

5. current gender expression;

6. the incarcerated person’s own views regarding safety;

7. medical and mental health needs/information/status;

8. compliance with medically recommended treatments;

9. vulnerability to sexual victimization;

10. likelihood of perpetrating sexual abuse;

11. facility-specific factors including physical layouts; and

12. any other relevant information.

These factors are also considered on a case-by-case basis in deciding the specific placement for a cisgender incarcerated person. 

iv. The considerations outlined in Part IV.B.3(b)(i) through (iii) apply to housing placements within a specific facility.

d. The PAC will make a decision regarding housing within 14 business days of the date of the hearing. The incarcerated person will be notified in writing of the PAC’s decision no later than day 14 which shall include a written statement of reasons, via the classification meeting process as denoted in NJAC 10A:9. The decision will be recorded in the incarcerated person’s classification meeting notes.

e. If the incarcerated person disagrees with the decision of the PAC, they may submit an appeal to the Commissioner, or the Commissioner’s designee, within 14 business days from the date of receipt of the PAC decision.

f. The procedures outlined herein shall apply regardless of when NJDOC learns an incarcerated person is transgender, intersex, or non-binary, whether at intake or after a significant period of NJDOC custody.  Incarcerated persons may request, via the IPCM or Administration staff, a review by the PAC if they believe their current placement does not align with their gender identity and considerations enumerated herein.

4. The housing assignment/transfer of incarcerated persons approved to be housed in a different facility due to their gender identity will be handled in accordance with all applicable operational policies and procedures and the provisions set forth in N.J.A.C. 10A.

5. In keeping with PREA standard 115.42, the particular placement of a transgender, intersex, or non-binary incarcerated person shall be reassessed by the IPCM and supplemental staff as deemed appropriate by the facility Administrator, or the Administrator’s designee, at least twice each year.

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8. In keeping with PREA standard 115.42, NJDOC shall not place transgender, intersex, or non-binary incarcerated persons in dedicated facilities, units, or wings solely on the basis of such identification or status.

Policy: Isolated Confinement Restriction Act, N.J. St. 30:4-82:5–82:11,  effective Aug. 1, 2020. 

30:4-82.7. Definitions relating to the use of isolated confinement

“Member of a vulnerable population” means any inmate who:

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h. is perceived to be lesbian, gay, bisexual, transgender, or intersex.

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30:4-82.8. Limiting the use of isolated confinement in correctional facilities; conditions

a. The use of isolated confinement in correctional facilities in this State shall be limited as follows:

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(15) An inmate shall not be held in isolated confinement based on the inmate’s race, creed, color, national origin, nationality, ancestry, age, marital status, domestic partnership or civil union status, affectional or sexual orientation, genetic information, pregnancy or breastfeeding status, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait.

b. Except as otherwise provided in subsection d. of this section, an inmate who is a member of a vulnerable population shall not be placed in isolated confinement.