california human-rights
Where are non-binary and intersex prisoners kept?
<p>I have been racking my brain trying to figure this out.</p>

<p>When a non-binary character has to be imprisoned, how is the correctional facility determined since most if not all are binary?</p>

<p>My particular interest is on intersex, genderfluid, and agender with genderfluid being able to fluctuate between different gender expressions.</p>

<p>In the US, the question of gender and facility-assignment depends on whose prison it is – federal, vs. a specific state. There may be a specific policy adopted by a particular prison system, but there is no specific statute that generally requires segregation of prisoners based on gender. Policies will exist which protect a prisoner's 8th amendment right to be free from cruel and unusual punishment: subjecting a person to repeated violence would be a kind of cruel and unusual punishment. </p>

<p>At the federal level, the <a href="https://www.law.cornell.edu/uscode/text/34/subtitle-III/chapter-303" rel="noreferrer">Prison Rape Elimination Act</a> was designed to eliminate rape in prisons (which was already illegal). The act mandates a zero-tolerance policy, and enables studies of the problem – it does not further distinguish gender categories and/or parameters of sexual orientation. Specific policies are highly variable between states and the federal system. In theory, a state could mandate separate prisons according to birth gender, current gender and sexual preference (or, wings within a facility). I don't know of any system that specially segregates bisexual inmates from mono-sexual ones (etc.). There federal policy on transgender prisoners is explained <a href="https://www.bop.gov/policy/progstat/5200-04-cn-1.pdf" rel="noreferrer">here</a>.</p>

<p>The main policy of relevance is that prisoners are assigned based on their biological sex. Prior policy applied to Transgender individuals, defined as</p>

<blockquote>
  <p>the state of one’s gender identity not matching one’s biological sex. 
  For the purposes of this policy, a transgender inmate is one who has
  met with a Bureau of Prisonspsychologist and signed the form
  indicating consent to be identified within the agency as transgender.
  This step allows for accommodations to be considered</p>
</blockquote>

<p>That version did not say what "biological sex" is. Under current policy, the facility shall </p>

<blockquote>
  <p>decid[e] the facility assignment for a transgender or intersex inmate,
  the TEC [Transgender Executive Council] should make the following
  assessments on a case-by-case basis:</p>
</blockquote>

<p>followed by, first: use biological sex as the initial determination for designation. Nothing addresses the former Intersex category, and I can find no explicit statements about what rules they use. <a href="http://www.administrativelawreview.org/wp-content/uploads/2019/03/Perrone_Final.pdf" rel="noreferrer">This article</a> makes some recommendations about this matter (suggesting making an official rule), but that's a desideratum and not the law, and it does not suggest that there is a known policy pursued by the purported TEC (whose actual existence is very hard to verify).</p>
