WoLF Submits Public Comment to CDCR on SB 132 Rulemaking

Download the PDF of the comment here

California Department of Corrections and Rehabilitation (CDCR)
Regulation & Policy Management Branch
Via email: RPMB@cdcr.ca.gov

Re: Comments on Notice of Change to Regulations # 25-04

April 15, 2025

Women’s Liberation Front (“WoLF”), a 501(c)(3) public charity dedicated to restoring, protecting, and advancing the rights of women and girls, recognizes the importance of keeping incarcerated women safe from male violence while in state custody. We appreciate the opportunity to comment on these proposed regulations.

In 2020, California enacted the Transgender Respect, Agency and Dignity Act (“SB 132”) to, primarily, protect transgender-identified males from the risk of sexual assault perpetrated against them by men in men’s facilities, by maximizing their access to women’s facilities. Previously, transfers had been on a clear case-by-case basis and took into effect important factors such as whether they were capable of committing rape, likely to commit rape, capable of impregnating women, and had histories of violence against women. SB 132 made it extremely difficult for CDCR to make efforts to appropriately gatekeep women’s facilities

Since the statute took effect in January 2021, incarcerated women have reported many problems and human rights violations with respect to its implementation. Since then, some community advocates have called for CDCR to go even beyond the mandate of SB 132 in allowing access to women’s facilities by men, and in doing so harming incarcerated women. We deeply appreciate that CDCR is taking efforts to mitigate these problems and has in some cases resisted these calls, and we hope that CDCR is not swayed by the feedback from these same advocates. The discretion to deny requests and provide for involuntary transfers back to men’s facilities that is permitted under the proposed regulations is entirely in line with SB 132 and with other relevant statutes and case law.

To be clear, WoLF does not support men being housed in women’s facilities at all, but we recognize that existing law requires this outcome at times. Our comments should not be read as an endorsement of SB 132, but merely comments on the ways in which the proposed regulations interact with the statute to either exacerbate or mitigate the negative effects on incarcerated women.

It is critical to remember that SB 132 did affirm the wisdom and necessity of keeping men and women housed separately in jails and prisons, and that there is no real objection to this practice. The questions that remain, regarding housing specifically, are largely about which males should be and can safely be housed in women’s facilities. CDCR should resist propositions to go beyond the requirements of SB 132 and make it even more difficult for CDCR to keep women in its custody in a safe and rehabilitative environment.

Omission of Important Documents To Rely Upon

In the last four years, evidence has continued to build that SB 132 has serious problems both facially and in its implementation, yet CDCR does not list the 2023 OIG report specifically on implementation of SB 132 in documents relied upon in the proposed regulations, even though it relied upon the 2020 OIG report. This is either a major oversight, and this report gives invaluable insight and guidance on the ways in which SB 132 has harmed incarcerated women.

Definitions

We recognize that SB 132 calls for CDCR to make changes to its terminology. However, we want to ensure that this does not go beyond the requirements of the law itself, which are already at odds with the reality of how men’s and women’s prisons operate and intentionally obfuscate the sex of the individuals affected by the statute, even when their sex is highly relevant.

Some comments called for definitions of “transgender man” and “transgender woman” to be a person who “is a man” or “is a woman”, respectively, and was “assigned” the opposite sex at birth. Far from being a clarification, such definitions are intentionally confusing, making it seem as if the sex of the person is irrelevant or, in the words of at least one commenter, “erroneously” assigned.

Housing

Safety of Housing Men with Women

According to a high-quality longitudinal study, even men who have self-identified as women for decades and who have taken hormones and removed their genitals, statistically offend at a rate no different from the other males and significantly higher than the female population. The vast majority of males who identify as women retain their penises, which means rape and pregnancy are still possible threats. In fact, there have been confirmed pregnancies in which trans-identified male inmates have fathered children since the implementation of SB 132. Furthermore, the population that is made eligible for transfer under SB 132 that was not previously eligible for housing in women’s facilities are disproportionately sex offenders. Fully one-third of biologically male inmates seeking housing in women’s facilities in California are registered sex offenders. These numbers are not aberrations; they are consistent with federal data, data from other states, as well as data from Canada and the UK.

The proposed rules state that SB 132 won’t result in new jobs, but shortly after SB 132 went into effect, the CDCR Division of Adult Institutions and California Correctional Health Care Services requested additional funds for fiscal years 2022, 2023, and 2024 because it “expect[ed] the PREA sexual assault allegations [to] increase” because “the department has identified the number of inmates who identify as transgender is increasing” due to SB 132 because it would leave to “the integration of different populations that have not previously been housed together” (i.e. male and female inmates being housed together). CDCR in its proposed rules do not reconcile this discrepancy.

The Moss Report, a document which was listed by CDCR as being relied upon, corroborated this, finding an increase in PREA allegations and in serious crimes committed related to weapons and drug offenses.

Proposed Section 3085.2(a): Housing Based on Gender Identity.

The proposed regulations state that trans-identified individuals “may” be housed according to the individual’s preference, which is an accurate reading of SB 132, despite some comments calling for the proposed regulations to say “shall” instead. If SB 132 provided an entitlement to opposite-sex housing, then there would be no process for even considering requests, let alone for and denying requests, but the statute calls for this precisely because there is no mandate.

Proposed Section 3085.2(e): Housing Based on Gender Identity: Denials

The proposed rules clarify that using the factors articulated by the statute (such as anatomy) are only “discriminatory” if used as a categorical basis for denial. This is consistent with the statute, it is consistent with common sense, and it is consistent with the Prison Rape Elimination Act (PREA). 

The 2023 OIG report regarding implementation of SB 132 found that lack of clarity in the language caused unacceptable problems. For example, that “a person with a history of raping women requests transfer to a women’s prison” that the language, without clarification, may be read to “prohibit the department from denying the person’s transfer request based solely on the prospective transferee’s history of raping women.” (p. 19).  Sadly, many of the community advocates critical of the proposed regulation think it is inappropriate to deny such a request, but we welcome regulations that seek to clarify that SB 132 should not be read to fling open the doors of women’s facilities to absolutely anybody regardless of risk.

Proposed Section 3085.2(f): Return Transfer to Previous Institution

It is reassuring to see a robust process articulated for return transfers to male institutions that does not unnecessarily hamper CDCR in its efforts to keep incarcerated people safe from violence and threats of violence. The proposed regulations give CDCR appropriate discretion to return individuals to male facilities when they have proven themselves to be at unacceptable risk to the women with whom they are being housed.

Some comments criticize this as creating a “two-tiered” system where trans-identified persons are being held to some sort of “different” standard from those who do not identify as transgender. This is circular, and false. It is again important to note that SB 132 affirms the general principle that men and women should be housed separately in correctional facilities. It is vital, and consistent with the statute, to treat males who identify as women (or non-binary) separately from women (regardless of how they identify), otherwise it completely negates the reason why men and women are held separately in the first place, which is that women are generally in danger when housed with men. Nobody disputes this.

One comment suggested that the proposed regulation should say that involuntary return transfers should only be allowed in which an individual were “proven to have falsified their gender identity” but the statute clearly defines gender identity as being something that is solely determined by and articulated by the individual. Something that is solely self-defined cannot by definition be “false”.

Searches

Proposed Section 3085.3(a)-(e): Searching Based on Gender Identity.

Some comments criticized denial reasons such as for “decades-old case factors” or for conduct that was alleged but did not result in convictions. This ignores the reality of the criminal justice system, which frequently results in serious crimes being “pled down” to less serious crimes in order to secure a conviction without victim(s) having to suffer through trials. This is the case, for example, with Tremaine Carroll, whose previous crimes included sex offenses, but was ultimately convicted of crimes that did not require sex offender registration. Tremaine went on to commit multiple forcible rapes while housed with women.

Some comments called for “due process” prior to approved search preferences being rescinded, and require an extremely high level of safety and management concerns, above and beyond what is required when considering initial search requests. This ignores the daily reality of the search process. If a person is behaving inappropriately, and is observed to be abusing the search preference to sexually harass staff (in practice, this is typically males harassing female staff), it should be able to be handled in a manner that does not expose female staff (or any staff) to sexual harassment.

Gender Identity Questionnaire

Some comments have called for language in subsection 3085.1(d) specifying that people should not be “penalized” for giving different and inconsistent responses to gender identity questionnaires, and should not have this used against them in consideration of transfer applications. Suspicious and inconsistent responses should absolutely be considered as a factor in transfer decisions, as they are one of the few available criteria for search committees to consider the sincerity of a person’s transfer request. (As a separate matter, it is worth noting that a person’s “sincerity” does not necessarily correspond with their risk of abusiveness. A person might be quite sincere in their stated gender identity while also being a sex offender and/or harm women with whom they are housed. Nonetheless, inconsistent answers is one potential indication that a person may be seeking “transgender status” for the explicit purpose of access to women).

Conclusion

The adoption of implementing regulations represents an opportunity for CDCR to necessarily clarify the degree to which SB 132 requires it to open the doors of women’s facilities to any male who claims a transgender identity. There have been numerous predictable and avoidable legal and practical problems that have arisen from implementation of the statute thus far, and while we believe that SB 132 must be overturned or at least amended, it is reassuring to see CDCR at least attempt to clarify the ways in which SB 132 does and doesn’t specifically require it to violate the rights of incarcerated women.

It was a failure for the legislature to have passed this statute, and for implementation of it to have begun, without meaningful engagement with incarcerated women and their representatives. Going forward, CDCR should meaningfully engage women, including incarcerated females who identify as transgender men or as non-binary (and who almost universally are choosing to remain housed with other females, where they are safe from male violence), in implementing SB 132. This includes not just revising and finalizing these regulations, but also in developing, evaluating, and maintaining other protocols and procedures for implementing SB 132. 

Thank you for your consideration.

Respectfully submitted,

Lauren Bone
Legal Director
Women’s Liberation Front (WoLF)