Rep. Ty Bodden and Sen. Jesse James speak about SB 438 at a Senate Judiciary and Public Safety committee on Thursday. (Screenshot via Wiseye)
The Senate Judiciary and Public Safety committee considered a bill Thursday that would require inmates to be held in facilities that align with their sex at birth and that strip searches be completed by someone of the same sex using the same method of determination.
The bill — SB 438/AB 447 — is the latest in a slate of Republican proposed bills targeting transgender people in Wisconsin. Bills that would ban gender affirming medical care for minors and would bar transgender girls from participating in girls sports passed the Assembly and Senate last month, despite Gov. Tony Evers’ repeated promises to veto bills that would harm LGBTQ Wisconsinites.
Rep. Ty Bodden (R-Hilbert) and Sen. Jesse James (R-Altoona) said the bill would act as a clarification of current law, which prohibits prisoners of different sexes within a prison, jail, or county house of correction and requires that strip searches performed on people who are being detained following an arrest are conducted by someone of the same sex as the detainee.
“The term ‘sex’ is not technically defined,” Bodden said. “This loophole has allowed for situations where biological men are housed with biological women and biological male officers are strip searching biological females all because [they] identify as the opposite sex, technically not violating any rule.”
The bill includes a definition for “sex” as an “individual’s sex at birth, as being male or female, according to distinct reproductive roles as manifested by sex and reproductive organ anatomy, chromosomal makeup, and endogenous hormone profiles.”
Bodden said the issue came to his attention after conversations with constituents and Department of Corrections employees.
Democrats questioned the bill because of its potential to violate current federal law, the message it could send about transgender people and the impacts it could have on them.
The Wisconsin Department of Corrections said in written testimony from the Assembly hearing on the bill held last month that it would be in conflict with standards set by the federal Prison Rape Elimination Act (PREA). The law, enacted in 2003, set a zero-tolerance standard for sexual abuse and sexual harassment of people criminally confined in a federal, state or local facility.
Language in the law, as noted by the state DOC, says transgender and intersex inmates’ placements should be made on a case-by-case basis, that their views with respect to their own safety should be given serious consideration, that they should be given the opportunity to shower separately and that LGBTQ inmates shouldn’t be placed in dedicated facilities on the basis of identity.
“This bill provides a very rigid prescription,” Sen. Kelda Roys (D-Madison) said. “Are you concerned at all that passing this bill is going to put us in violation of federal law and is going to tie DOC’s hands, rather than following the standards that have been set forth nationally?”
In addition, guidance from the U.S. Department of Justice in 2016 said that any “written policy or actual practice that assigns transgender or intersex inmates to gender-specific facilities, housing units, or programs based solely on their external genital anatomy violates the standard. A PREA-compliant policy must require an individualized assessment…The policy must allow for housing by gender identity when appropriate.”
“PREA was put in place because it comes down to the safety of the inmates within the institution,” James said in response. “This legislation helps address that element when it comes to the specific definition of sex.”
The authors of the bill said there could be instances in which inmates falsely claim to identify as transgender, so that they can be placed in whichever facility they choose.
“We’re talking about the prison population here. This isn’t about the LGBTQ community as a whole,” James said. “We’re talking about the people that are in prison currently right now that can potentially manipulate and use a system to their advantage.”
Despite current federal law, however, transgender inmates across the U.S. are often not housed in accordance with their gender identity.
Roys said that the U.S. has a “very long and dark history of maligning trans people, and the LGBTQ community in general, as perpetrators of violence, perpetrators of sexual violence.”
“The reality is that trans people are much more likely to be victims of violence than perpetrators, and one of the things that concerns me about this bill is that it plays into that narrative that trans people are somehow dangerous,” Roys said.
“Sometimes the conversations that happen in this building, with respect to trans people, whether we’re talking about people who are incarcerated, whether we’re talking about young people playing sports, [are] so harmful,” Roys added.
Sen. Lena Taylor (D-Milwaukee) added that nobody is identifying as transgender for that purpose.
James Stein, deputy advocacy director for the American Civil Liberties Union, said the bill would have a harmful impact on transgender Wisconsinites who are placed in facilities that do not match their gender identity. He said that the bill would increase the likelihood of transgender inmates experiencing sexual physical abuse, and mental health consequences.
A 2015 report by the U.S. DOJ found that 35% of transgender people who had spent time in prison in the previous year reported being sexually assaulted by staff or fellow prisoners.
“All trans Wisconsinites, including those incarcerated, deserve the right to exist to be treated with dignity and respect and to be protected from violence,” Stein said.
Fair Wisconsin, the Human Rights Campaign, Wisconsin Coalition Against Sexual Assault, Wisconsin Council of Churches, Wisconsin Voices and End Domestic Abuse Wisconsin are registered against the legislation, according to WI Lobbying information.
Correction: This story was updated to correct the spelling of the ACLU deputy advocacy director’s name.
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