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Policy:                         202.045

Title:                           Management of Transgender/Gender Non-Conforming/Intersex Offenders

Effective Date:           6/19/18

 

PURPOSE:    To provide guidelines for the evaluation, placement, and management of offenders who identify as transgender, intersex, gender non-conforming, or have other clinical conditions in which gender is unclear.

 

APPLICABILITY:  Department-wide

  

DEFINITIONS:

Gender – The socially constructed roles, behaviors, activities, and attributes that a given society typically or historically assigns to men and women.

 

Gender dysphoria (GD) – a mental health diagnosis currently defined by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) as a “strong and persistent cross-gender identification” that is “manifested by a stated desire to be the opposite sex and persistent discomfort with his or her biologically assigned sex.” Not all transgender offenders have a diagnosis of GD and a diagnosis of GD is not required for an individual to be provided services.

 

Gender identity – Distinct from sexual orientation and refers to a person’s internal, deeply felt sense of being male, female, or something else.

 

Gender non-conforming– a person who is uncertain of their gender identification or does not identify as male or female.

 

Intersex – a person whose sexual or reproductive anatomy or chromosomal pattern does not seem to fit typical definitions of male or female.

 

Pat search – see policy 301.010, “Searches.”

 

Transgender – an umbrella term describing individuals who live and/or identify themselves as a gender other than that assigned at birth.    A transgender individual may seek to live as a member of this sex, especially by undergoing surgery and hormone therapy to obtain the necessary physical appearance (as by changing the external sex organs).

 

Transgender Committee – a committee responsible for making recommendations regarding placement, property, and programming for transgender and intersex offenders.  The committee is comprised of the department’s health services director,  medical director, director of behavioral health, and director of nursing, along with an intake/security representative, health services administrator from the intake facility, warden of the facility where the offender is housed, and any other department employee deemed necessary to make a decision.

 

Unclothed body search – see policy 301.010, “Searches.”

 

PROCEDURE:

A.                Screening

1.         When an offender identifies through kite or other communication as transgender, gender non-conforming, or intersex, facility mental health staff must complete a transgender psychological screening, including the offender’s view with respect to their own safety.

 

2.         Mental health or health services staff may not search or physically examine a transgender, gender non-conforming, or intersex offender for the sole purpose of determining the offender’s genital status.  If the offender’s genital status is unknown, it may be determined through conversations with the offender, 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.

 

3.         Facility health services staff must have an offender sign a release of information to obtain medical/mental health records when the offender:

a)         Indicates a history of transgender or transsexual-related treatment;

b)         Identifies as or is reported by staff to be gender non-conforming; or

c)         Has other clinical conditions in which gender assignment is unclear, such as cross dressing or physical features characteristic of a gender different from that assigned at birth.

 

4.         An offender who identifies as transgender, gender non-conforming, or intersex and refuses to participate in a transgender psychological screening or sign a release of information for medical/mental health records is placed in administrative segregation.  Health services staff must seek a court order to obtain these records in the event the offender refuses to sign a release of information.

 

B.        Placement

1.         If an offender is identified as transgender, gender non-conforming, or intersex upon screening, facility staff determines preliminary placement of the offender until the transgender committee makes a placement recommendation and the assistant commissioner-facility division determines placement.

 

2.         In deciding whether to assign a transgender, gender non-conforming, or intersex offender to a facility for male or female offenders, the department considers 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. 

 

The department does not place transgender, gender non-conforming, 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. 

 

3.         Upon completion of the transgender psychological screening, the facility mental health director must forward the screening to the chair of the transgender committee. The chair schedules a meeting of the transgender committee.

 

4.         The transgender committee makes recommendations regarding facility placement and other matters that it deems necessary to maintain the offender’s safety, such as single cell or shower restrictions. The committee may, in its discretion, consult with the offender and outside health care providers to assist in making its recommendations. The committee considers factors such as the offender’s security level, criminal and disciplinary history, current gender expression, medical and mental health needs, vulnerability to sexual victimization, and the likelihood of perpetrating such abuse on other offenders.

 

5.         The transgender committee must promptly forward its recommendations regarding facility placement and other matters to the assistant commissioner-facility division for a final decision. The assistant commissioner should, whenever possible, review the committee’s recommendations within five days and inform the committee chair whether the recommendations have been approved, denied, or modified. The assistant commissioner’s determination must be placed in the offender’s electronic file.

 

6.         A facility may seek reconsideration of the assistant commissioner’s placement decision for any reason. The warden must contact the assistant commissioner, who may ask the transgender committee chair to convene another meeting and make recommendations if the assistant commissioner determines that further evaluation is needed.

 

7.         Placement and programming assignments for each transgender, gender non-conforming, or intersex offender must be reassessed at least twice each year by the assistant commissioner-facility division or designee, to review any threats to safety experienced by the offender.

 

C.        Transfers

1.         For a transgender, gender non-conforming, or intersex offender to be considered for a transfer to another facility, including one housing individuals of the offender’s identified gender, the facility warden or transfer coordinator must notify the chair of the transgender committee prior to initiating a transfer request.

 

2.         The transgender committee evaluates a transfer request and makes a recommendation to the assistant commissioner-facility division. The assistant commissioner should, whenever possible, review the committee’s recommendation within five days and make a final decision on the transfer request.         

 

D.        Showers, Undergarments, and Special Property Requests

1.         Transgender, gender non-conforming, and intersex offenders must be given the opportunity to shower separately from other offenders.

 

2.         Consistent with safety and security concerns, transgender, gender non-conforming, and intersex offenders must have the opportunity to have undergarments of their identified gender even if they are not housed with offenders of the identified gender. The department provides such undergarments throughout the offender’s incarceration.

 

3.         Offender requests for other types of clothing or property (such as makeup) must be made directly to the transgender committee. The transgender committee reviews the request in light of the offender’s need for the requested property and any safety or security concerns that the property poses.

 

E.         Medical and Mental Health Services

1.         The department provides transgender, gender non-conforming, and intersex offenders with appropriate gender-related mental health and medical services throughout their incarceration.

 

2.         Gender-related hormone or medical treatment may be provided after an individualized assessment of the offender by facility medical staff. The individualized assessment should, at a minimum, consider the following factors:

a)         Whether the offender has been diagnosed with gender dysphoria or gender identity disorder;

 

b)         The nature and severity of any symptoms associated with gender dysphoria or gender identity disorder;       

 

c)         The offender’s treatment and life experiences prior to and during incarceration;

 

d)         Whether the offender is willing to participate in mental health therapy in conjunction with medical treatments;

 

e)         Whether there is sufficient time remaining on the offender’s term of imprisonment to complete hormone or other medical treatment; and

 

f)         Whether there are any medical and/or mental health conditions that may create an undue risk of adverse health consequences caused by hormones or other treatment.

 

3.         Medical staff should request consultation from facility mental health staff regarding the mental health benefits of gender-related hormone or medical treatment. The department’s medical director makes the final determination on whether gender-related hormone or medical treatments for transgender offenders should be initiated or continued.

 

F.         Searches of Transgender Offenders

1.         Pat and unclothed body searches of transgender, gender non-conforming, or intersex offenders must be done in accordance with the gender of the facility in which they are assigned (i.e., searches must be conducted by male staff in facilities that house male offenders and by female staff in facilities that house female offenders).  Unclothed body searches shall be made in a manner designed to ensure as much privacy to the offender as practicable and consistent with Policy 301.010, “Searches.”

 

2.         Transgender offenders may request that they be searched by security staff of another gender. Such a request must be pre-authorized by the transgender committee after consultation with the facility warden and health services staff. Any exceptions to the general rule on searches must be specifically described (e.g., “pat search only by female staff”), clearly communicated to relevant staff through written means, and reflected in the Correctional Management Operations System (COMS). Offenders must be provided with a personal identifier that indicates their individual exception to be carried at all times and presented to staff prior to searches.

 

INTERNAL CONTROLS:

A.        The determination of the assistant commissioner–facility division is retained in the offender’s base file, mental health, and medical record.

 

ACA STANDARDS:            None

 

REFERENCES:       Minn. Stat. §241.01

Policy 301.010, “Searches”

Prison Rape Elimination Act (PREA), 28 C.F.R. §115.15, 115.41, and 115.42 (2012)

 

REPLACES:             Policy 202.045, “Evaluation and Placement of Transgender Offenders,” 11/15/16.

All facility policies, memos, or other communications whether verbal, written or transmitted by electronic means regarding this topic.

 

ATTACHMENTS:   None

 

APPROVALS:

Deputy Commissioner, Community Services

Deputy Commissioner, Facility Services

Assistant Commissioner, Facility Services

Assistant Commissioner, Operations Support