Editor’s Note: As we celebrate Pride Month, we want to recognize and center our transgender and LGBTQ+ members in custody, who face unique challenges and discrimination due to their identities. California has taken steps to improve the conditions transgender people endure in prisons, most notably in 2020 with SB 132: the Transgender Respect, Agency, and Dignity Act. In 2025, CDCR proposed several changes to the implementation of SB 132.
LSPC Staff Attorney Eric C. Sapp wrote to CDCR Undersecretary Johnson and staff about the proposed changes. The letter focused on four main issues in implementation: 1. The erasure of the term gender dysphoria; 2. The maintenance of privacy in the questionnaire process; 3. The burdensome housing transfer request process vs the arbitrary transfer return process; and 4. The incompatibility of search rules with federal Prison Rape Elimination Act (PREA) standards. Below is a summary and explanation of the letter’s key points.
1. Erasure of “Gender Dysphoria”
NCR 25-04 proposed removing the definition of gender dysphoria from the law, with CDCR’s justification explaining that incarcerated persons are now allowed to self-identify. Though this explanation is logical, it leaves room for interpretation that the Department no longer recognizes the condition described by the term. In the future, this could manifest in people invalidating gender dysphoria as a valid diagnosis or basis for accommodation. The Department should clarify now.
2. Privacy
California Penal Code Section 2605 mandates that the initial intake process includes asking a person entering custody about their gender identity in a private setting, as well as prohibiting discipline for declining to answer. The incarcerated person can amend their identity at any time, and CDCR must repeat the private process as specified above. The proposed changes to implementation merely state that the questionnaire process is to be repeated, without specifying that it must continue to be offered privately. The proposal also gives no regulations as to privacy or accessibility of the Gender Identity Questionnaire when stored in the department’s electronic databases. For the safety and protection of transgender incarcerated people, privacy is critical.
3. Housing Transfers and Return Transfers
Currently, incarcerated people have the right to “be housed at a correctional facility designated for men or women based on the individual’s preference” PC §2606 (emphasis added). Exceptions must be proven to be necessary in writing by the Department. The proposed regulations make the approval process tedious and difficult, and the rejection process easy. In addition, the regulations involve conducting a “social inquiry” with the person’s work or program supervisor, which risks outing someone at a pre-approval stage. The proposed regulations would make it easy for the warden of a receiving institution to send someone back to the institution they came from, which could entail a serious threat to the incarcerated person’s safety. In sum, these proposed changes could lead to acts of discrimination and retaliation, either before the request is successful, after it is unsuccessful, or after a return.
4. Search Standards and Compliance with the Prison Rape Elimination Act (PREA)
Possibly most concerningly, these proposed regulations institute new search rules that enable much more invasive searches at a lower standard of circumstances warranting the search. Currently, Federal Regulation 28 CFR § 115.15(f) limits the need to “security,” while CDCR proposed regulations invoke a much wider definition that includes institutional order as well. This lowers the burden of justification on CDCR, enabling them to commit more potentially invasive searches on people without a credible security threat.
The Department should address the foregoing concerns as the rulemaking progresses. The Transgender Respect, Agency, and Dignity Act was, in many ways, a historic piece of legislation, and its implementation by this agency should be up to the tasks of dignity and respect.
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