Will New York Put Men in Women’s Prisons?

The bill would make it illegal to “discriminate” against (i.e., deny transfers to) male prisoners who “identify” as women—even those incarcerated for sex crimes against women. It would even prohibit correctional institutions from questioning the sincerity or motives behind a request to transfer and would allow offenders to move between men’s and women’s prisons without restriction.

Although the bill purports to apply to both sexes equally, it would harm only women who would be locked up in women’s prisons with male offenders. Jurisdictions with A709-style “gender identity” prison policies house biological males in women’s facilities but not the other way around. That is because it’s biological sex—not self-attested gender identity—that leaves women vulnerable to male violence.

The risks should be obvious. In New Jersey, two female prisoners have become pregnant by a male inmate housed in the women’s prison after what corrections officials said were consensual relations. In California, there have been numerous reports of sexual assault by male offenders transferred to women’s facilities under a law similar to A709. The California law is being challenged in a federal civil-rights case by four female prisoners represented by the Women’s Liberation Front. The case even has support from some male prisoners who identify as women, who have seen the harms of these policies firsthand.

The damage caused by such policies is well-documented. California hired a consulting firm to advise on the implementation of its law. That report illustrates the breadth of problems beyond the obvious ones of sexual abuse and pregnancy springing from the conversion of women’s facilities to mixed-sex prisons (particularly when prison administrators are required by law to pretend the facilities are still single-sex). The report details gang activity, weapons and drugs brought from male facilities and a rise in serious violent incidents. In response, prison officials have imposed security protocols on all inmates, including female ones, which include restrictions on movement and invasive bodily searches. Female prisoners are seeking mental-health services at higher rates. New York can expect similar results.

Disturbingly, A709 packages women’s legitimate fears as bigotry, stating that transfers may not be denied for “discriminatory” reasons, such as “the complaints of other incarcerated individuals who do not wish to be housed with a non-cisgender or intersex person.” But incarcerated women don’t object to being housed with “non-cisgender” people. Biological women who identify as transgender are housed in women’s facilities. What women object to is being housed with men.

Ms. Bone is an attorney and policy adviser to Women’s Liberation Front. Ms. Braceras is director of Independent Women’s Law Center.