New bills seek to protect LGBTQ people from discrimination in the legal system

Lawmakers in several states are advancing bills that aim to help LGBTQ people at risk of discrimination within the legal system.

In Maryland, Democratic Del. Lesley Lopez has introduced a bill that would require correctional facilities to have a written policy ensuring people can’t be discriminated against because of their gender identity, sexual orientation, pregnancy status, disability, or political beliefs, and that someone’s anatomy or sexual orientation can’t be used as a reason to deny housing placement. The bill is currently sitting in the Maryland House following a hearing on Feb. 8.

About 1,200 people in the federal prison system identify as transgender, according to Justice Department figures from 2021. It’s typical for many prisons and jails in the United States to house transgender people by their assigned sex at birth, rather than their gender identity, putting them at higher risk for violence, according to experts. Research from the National Center for Transgender Equality showed that close to 30% of incarcerated trans people reported being physically or sexually assaulted by facility staff or other inmates in the preceding year.

Lopez drafted the bill following conversations with FreeState Justice, a pro-LGBTQ equality legal advocacy group in her state. She told the American Independent Foundation she was struck by an incident she learned about from the group that involved an 18-year-old transgender woman named Kazzy Davis, who was kept in the Baltimore Central Booking and Intake Center for more than 40 days. In October 2021, Davis was acquitted of assault charges, but she reported being housed with men and misgendered by staff at the facility as she received her hormone shots during her stay.

FreeState Justice is seeking changes to state laws to address experiences like Davis’. Current standards say that if a trans person hasn’t had what the state considers to be the correct amount of transition-related surgeries, an individual must be housed by “his or her birth sex.”

“It’s a procedural error that had an enormous impact on her life, and we have a responsibility as a state to make sure that our systems are working for everyone and are keeping everyone safe,” Lopez explained.

The Maryland delegate added that she’s happy to sponsor a bill like this as so many states attack transgender equality: “Since introducing this bill, I’ve had all sorts of people come up to me through social media and online who have taken note of the rarity of a trans protection bill. We see so many bills that are in opposition to the trans and nonbinary community that I feel really proud to be introducing a bill that’s protective of folks.”

A bill similar to Maryland’s is currently sitting with the New York State Assembly Standing Committee on Correction. The legislation “establishes that incarcerated people shall be presumptively placed in a correctional facility with persons of the gender that most closely aligns with such person’s gender identity unless the person opts out of such placement.” It also requires that transgender prisoners have access to commissary items and clothing that corresponds with their gender. New York Gov. Kathy Hochul, a Democrat, also supported transgender people’s requests to be housed according to gender identity with a policy directive under her budget plan from late January.

Beverly Tillery, executive director at the New York City Anti-Violence Project, which works with LGBTQ and HIV-affected communities, told the American Independent Foundation she’s seeing more attention on issues of safety for transgender, gender-nonconforming, nonbinary, and intersex people in New York. She said the bill would be an important “first step” to address some of these issues.

“There is a growing awareness that this is a serious issue,” Tillery said. “The governor has acknowledged that this is a serious issue that needs to be addressed. I think people are hopeful because of some recent successes, including the banning of the ‘walking while trans’ law last year.”

The so-called “walking while trans” ban was a New York law from the 1970s that focused on criminalizing the act of loitering, which was used by police to profile many trans people, particularly transgender women of color, as sex workers. The law was repealed in 2021.

Richard Saenz, a senior attorney at LGBTQ advocacy organization Lambda Legal, said that although there are some federal laws, such as the Prison Rape Elimination Act, that are supposed to provide protections for incarcerated transgender people, the Federal Bureau of Prisons and state prison systems are not properly protecting trans prisoners.

Saenz told the American Independent Foundation, “Almost every state prison system and jail fails to house transgender people by their gender identity and to take their safety into account. We continue to hear horrible stories of violence and harassment that transgender women face in men’s facilities. Although there have been important changes in California, New Jersey, and Connecticut, among other states, and county jails through legislation and litigation, more states must follow because they continue to violate the rights of incarcerated people by their policies and practices.” 

A Washington bill would prevent what it defines as formerly and currently incarcerated people’s “sensitive records” from being available to public inspection, including information on mental health, sexual orientation, or gender identity. It passed the House on Feb. 9 and has been scheduled for a public hearing in the Senate Committee on State Government and Elections on Feb. 18.

Washington state Rep. David Hackney (D), one of the sponsors of the House bill, told the American Independent Foundation, “Your relatives can get [these records]. Groups that are anti-transgender or anti-gay can get it. They can expose your sexual orientation and your gender identity. The idea is that when you are incarcerated in state prison, you don’t give up your privacy, your security, and your dignity.”

In 2018, Connecticut became the first state to put requirements in place for incarcerated trans people to be housed according to gender identity should they provide certain documentation, such as a driver’s license or birth certificate reflecting their gender identity. In 2020, California Gov. Gavin Newsom (D) signed a bill into law setting up a process for prisoners to disclose whether they are transgender, nonbinary, or intersex and make housing requests that can’t be turned down because of the prisoner’s anatomy. And in June, the New Jersey Department of Corrections planned to change its policies to be trans-inclusive due to a settlement in a lawsuit with the American Civil Liberties Union.

At the same time, lawmakers in New Jersey and Oregon are looking at a different sort of legislation, prohibiting juror disqualification based on a person’s gender identity or sexual orientation and banning the discriminatory use of peremptory challenges, a practice that allows lawyers to reject potential jurors from a trial without providing a justification.

Just eight states have nondiscrimination protections for jurors on the basis of both gender identity and sexual orientation, though a Lambda Legal study on government misconduct by prisons, courts, and police showed that 19% of respondents who identified as either LGBTQ or as living with HIV heard “negative comments about a person’s sexual orientation, gender identity or gender expression” from a lawyer, judge, or another type of court employee.

A New Jersey bill would ban the disqualification of jurors based on their status as LGBTQ people and establish procedures for the legal system to deal with discriminatory use of peremptory challenges. The bill text says that means that in a civil or criminal trial, “no party shall purposefully use a peremptory challenge to remove a prospective juror on the basis of an assumption that the prospective juror cannot be fair and impartial in carrying out the duties of a juror” whether that’s based on sexual orientation, gender identity, race, national origin, color, creed, ancestry, sex, or marital status.

Although Oregon in 2008 enacted a bill called the Oregon Equality Act, which has nondiscrimination protections for LGBTQ jurors, state Rep. Marty Wilde (D) told the American Independent Foundation he’s backing another bill that would ensure there are higher standards for peremptory challenges that could be discriminatory toward LGBTQ people, as well as other protected groups. Lawyers would essentially have to go further to make their case that their challenge was not a biased one.

Wilde provided an example of what a lawyer would be expected to do. “As a practical matter, what it means is that if for some reason I have an unconscious bias against somebody because of their race or religion or LGBTQ status, I need to engage with that and ask them more questions,” he said.

Published with permission of The American Independent Foundation.