New policy houses New Jersey prisoners based on gender identity

Sonia Doe face not seen, with arms crossed on a boardwalk railing
Sonia Doe, photo by The ACLU New Jersey

NJDOC reaches a settlement with ACLU-NJ

The New Jersey Department of Corrections (NJDOC) will make it standard for the state to assign prison stays to a person based on their gender identity, not the sex assigned at birth. The change is part of a settlement with Sonia Doe and the ACLU.

New Jersey prison administrators have officially agreed to place inmates in correction facilities based on their gender identity rather than sex assigned at birth. The change officially took place on July 1, 2021, adding New Jersey to the shortlist of states (including California, Connecticut, Massachusetts, and others) that base prison placements on gender identity and consider the safety of their transgender, intersex, and non-binary inmates.

This agreement is part of a 2019 settlement from a lawsuit filed by a transgender woman under the pseudonym Sonia Doe, who argued that being forced to serve her sentence in men’s prisons violated her civil rights.

“When I was forced to live in men’s prisons, I was terrified I wouldn’t make it out alive,” Doe said in a statement. “Though I still have nightmares about that time, it’s a relief to know that as a result of my experience, the NJDOC has adopted substantial policy changes so no person should be subjected to the horrors I survived.”

Doe entered prison in March 2018 and spent time in four different men’s prisons, even though NJDOC knew she was a woman, according to her August 2019 lawsuit. The ACLU alleged 10 violations of the state’s Law Against Discrimination and the state Constitution. As a result, Doe had been subject to “discrimination, verbal and sexual harassment, and physical assault,” the suit contended. Within two weeks, NJDOC transferred Doe to the Mahan facility, the state’s only women’s prison.

While the DOC had agreed to the emergent relief the suit had sought—transferring Doe to Mahan—the action continued to deal with the civil rights violations and damages. As part of the settlement, the state also agreed to pay $125,000 to Doe in damages, as well as her legal fees.

“The Department views this settlement agreement as significant steps in the right direction,” said Chris Carden, a NJ Department of Corrections spokesman. “Anyone incarcerated under NJDOC care may at any time provide information regarding their gender identity to the NJDOC. The department then takes careful measures to ensure they are properly housed in line with their gender identity and their housing preferences while ensuring both their safety and the institution’s security. Overall, the steps being taken support the important cultural changes being made throughout the department.”

The NJDOC’s 11-page policy will not only properly place inmates in correctional housing by gender identity, but it will also prohibit discrimination of an inmate based on gender identity, require staff to use appropriate pronouns and honorifics when addressing a person, and will guarantee prisoners appropriate undergarments, personal products and heightened privacy protections.

“Really, what the change in policy does is recognize trans folks for who they are in terms of their gender identity and treats them in the same way as a cisgender individual would be treated,” said Robyn Gigl, an attorney with ACLU-NJ who represented Doe.

According to Tess Borden, another attorney with ACLU-NJ who also represented Doe, studies have found transgender individuals suffer harassment and violence in prison at higher rates than the general population.

“The settlement of this lawsuit puts in place systemic, far-reaching policy changes to recognize and respect the gender identity of people in prison—with housing based on gender identity, use of appropriate pronouns, access to the gender-affirming property, and much more,” Borden said in announcing the settlement. “This policy places New Jersey in the vanguard of states committed to protecting transgender, intersex, and non-binary people in prison housing determinations and continues its path toward eliminating discrimination based on gender identity.”

The new policy has the potential to impact many more individuals. Borden said it provides clarity for NJDOC officers and staff when working with transgender individuals and new protections for those inmates.

The policy requires trans inmates be given access to transgender healthcare

First, the policy provides a presumption that all people in state custody will be housed according to their gender identity. In making those housing assignments, prison officials are not to use the sex assigned to an inmate at birth or perceived management or security problems. On intake, an individual will have the opportunity to self-identify as transgender or nonbinary, and housing decisions will be put in writing, with an inmate having the right to appeal.

Transgender inmates will be given the appropriate undergarments and items for grooming and told about their rights regarding searches—as a rule, cross-gender strip and pat-down searches are not permitted.

Officers and other staff will be prohibited from harassing or discriminating against an inmate based on gender identity and required to use the proper pronouns and honorifics when referring to individuals. Medical and mental health treatment, including gender-affirming care, is to be provided when appropriate.

“The policy changes also require that trans inmates be given access to transgender healthcare. So, to the extent that if hormones are available, they would be entitled to receive that kind of treatment,” said Gigl. “They’d be entitled, in terms of commissary privileges and personal items, clothing and things of that nature, all to be treated the same as a cis person would.”

Additionally, the department will distribute the new policy to all custody staff and others and is to provide additional training for some high-ranking staff. Although these changes will not fix all the current prison system problems, Gigl and others involved in the settlement hope this change is a step in the right direction.

“Being in prison, obviously, always entails hardships,” said Gigl, “but this will help lessen the hardships for trans people and hopefully improve their safety and their ability to get through whatever sentence they have to serve in a safe manner.”