On September 29, 2020, California Governor Gavin Newsom signed Senate Bill 132, The Transgender Respect, Agency and Dignity Act into law. S.B. 132, authored by Representative Scott Wiener, allows male prisoners to be housed in female prisons on the grounds that they “identify” as women. Or, according to the California Department of Corrections & Rehabilitations (CDCR,) it “allows incarcerated transgender, non-binary and intersex people to request to be housed and searched in a manner consistent with their gender identity.” CDCR secretary, Ralph Diaz, stated in the press release, “No one deserves to be treated disrespectfully because of their gender identity or expression. And it is our sworn duty to protect people from sexual assault and violence.”

But what of the women being housed with male inmates? A man who “feels” like a woman is still biologically male — and males pose a clear and present danger to females who are vulnerable to violent attack, sexual assault, and pregnancy in a confined space. Perhaps that’s why:

“Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women [and] the whole of the premises allocated to women shall be entirely separate” according to The United Nations Standard Minimum Rules for the Treatment of Prisoners.

“When TMG, Inc. determined the success of S.B. 132, the focus was primarily on the correct use of pronouns and the mental health, comfort and safety of the men identifying as women. There was hardly a whisper of concern for the female inmates at all.”

California decided to violate these standards when S.B. 132 went into effect on January 1, 2021 and men have been transferring into women’s prisons ever since. To address public concern, the CDCR compiled an FAQ on S.B. 132 with vague and concerning answers that do little to reassure the public that the health and safety of the female inmates have been adequately addressed. Perhaps the CDCR realized how insufficient their non-reassurance was to the public, so they sought out the assistance of The Moss Group, Inc. (TMG, Inc.) to assess their implementation of S.B. 132. TMG, Inc. deemed California’s experiment a success. According to the CDCR’s press release on March, 2, 2023, TMG, Inc determined:

“CDCR developed a thoughtful approach to preparing both staff and incarcerated individuals for a successful transition in housing assignment processes as well as changes in practice to increase safety and respect in the management of (transgender, non-binary and intersex) individuals,”

However, in order for TMG, Inc to come to this conclusion, they had to implement a callous degree of willful ignorance in regard to the nature of housing male offenders inside a female-only facility.

A sampling of TMG, Inc.’s “standard” of assessment from their 37-page report may be found on page 17:

“Based on a review of available documents and data, disciplinary charges related to violence, sexual behavior, enemy concerns, hesitancy of the requesting individual to transfer, safety of the current environment, and significant potential for adverse impact of the move (i.e., single cell to dorm) were the most common reason for denial of placement by gender identity.

While history of violence, diagnoses of gender dysphoria, and gender affirming therapies, all appeared to be considered as relevant in consideration for continuing care, none were treated as automatic inclusion or exclusion from gender identity based placement. This demonstrates case-by-case decision making.

The most common reason for approval of placement was described as “no case factors that were not currently present among individuals housed at a female institution.”

Now, there are several glaring fallacies in the above statements:

1.) The risk factors were based on "available documents and data" for “disciplinary charges” against a male in a male-only prison. For males who are more evenly matched against other males or who prefer female victims, there would not necessarily be any incidents against other male offenders that would disqualify him based on previous "violence, sexual behavior, (or) enemy concerns” in a male-only institution.

2.) The criterion of "hesitancy of the requesting individual to transfer, safety of the current environment, and significant potential for adverse impact of the move (i.e., single cell to dorm)" was assessed by the male’s comfort level in a male-only prison and demonstrates a disregard for assessing his impact on female inmates.

3.) "[A] history of violence,” and a lack of “diagnoses of gender dysphoria, and gender affirming therapies" absolutely should have been disqualifying factors for a male if he is to be housed in a female-only facility.

a.) Ignoring a history of violence and/or sexual offenses against women and children treats his likelihood of harming women in a confined space as inconsequential.

b.) A man who hasn’t identified as “trans” prior to his arrest should be treated as an indicator that the male offender may be exploiting the law to access vulnerable women in a confined environment.

4.) The CDCR justifying admitting a man into a women’s prison because he had "no case factors that were not currently present among individuals housed at a female institution" is another way to say, ‘Because some women have committed similar crimes, a male individual being housed with them makes no difference.’

When TMG, Inc. determined the success of S.B. 132, the focus was primarily on the correct use of pronouns and the mental health, comfort and safety of the men identifying as women. There was hardly a whisper of concern for the female inmates at all.

In fact, much of the burden for implementing S.B. 132 was forced upon the female inmates themselves. Even though 93% of incarcerated women have been sexually victimized and traumatized prior to their sentencing, largely by men, their objection over being housed with males was treated as a “misunderstanding” (page 18) and their fears were treated as a matter of “using correct language.” It was suggested that for the ease and comfort of the males, regardless of their “genital status,” he ought to have contact with women in the institution to serve as his mentors (page 14 under “Reception Center Processing and Orientation Cohorts,”) and his perception of health and safety must be given serious consideration for bed assignments, placements, and programming decisions, including but not limited to him being housed with female inmates of his choice, or having inmates removed if he perceives them as a threat (page 15, under “Institutional Placement of Process Initiated by GIQ.”) To TMG, Inc.’s credit, they did have a moment of lucidity, admitting on page 18: “[d]irect selection of roommates is a risk to safety and security,” though there was no mention of exactly whose “safety and security” would be at risk.

“A woman with a history of abuse at the hands of males who reacts in fear in the presence of males is treated as ‘implicit bias’ instead of a reasonable trauma response; a man who reveals himself to be a man in both behavior and anatomy is treated as ‘confirmation bias’ instead of clear, objective truth.”

TMG, Inc. noted the increase of Prison Rape Elimination Act (PREA) allegations made by female inmates, though it was widely believed by staff and “incarcerated individuals” that they were made in “bad faith.” In other words, the staff believed the female inmates were lying about sexual abuse. It is not reassuring to know that Central California Women’s Facility (CCWF) investigates its own allegations of sexual abuse as confirmed by the 2022 PREA CCFW audit. They also do not note “gender identity” in incidences of sexual abuse, and it’s against S.B. 132 policy to punish a male identifying as a woman for withholding information about his “genital status” or to conduct a search to affirm what he says about himself is true.

Nonetheless, TMG, Inc. had suggested the uptick in PREA reports and grievances on page 8 was the reason for staffing shortages, as well as emphasis on gender affirming care, training, and case work-ups. The PREA CCFW audit confirms some harried activity regarding staffing. An outdated Staffing Plan from 2019 was presented during the onsite audit and the auditor noted that staff were unfamiliar with the document. The lack of documentation led the auditor to believe the CCWF Staffing Plan had not been reviewed in the years immediately before and after the implementation of S.B. 132.

Although TMG, Inc. acknowledged that PREA allegations were not as common before S.B. 132, there was no thought given to the possibility that S.B. 132 could be exploited by men who simply wanted access to women. In fact, TMG, Inc. stated “incarcerated individuals were aware they could go to staff to change their gender identity at any time.” The possibility that men may take advantage of that policy was completely ignored.

Throughout the report, TMG, Inc. made many recommendations. Among them, they discouraged the use of referring to male inmates as “men” and correctly sexing a male inmate was considered “reinforc[ing] a harmful stereotype” (page 21.) They suggested more training for the staff concerning “misconceptions” about men transferring into a women’s prison and they placed responsibility for the male inmate’s safety and comfort on female inmates. They stated that, while one’s “personal beliefs” could not be changed, they asserted “trainers, facilitators, and leaders” would have to comply with the precedent set by S.B. 132. They also suggested that more men identifying as women should be placed on the Inmate Advisory Council to better tell female inmates and staff how to accept males in a female-only prison.

Under “Bias, Anticipatory Anxiety, and Fear of Manipulation,” TMG, Inc. stated the concerns about physical and sexual safety by female inmates were “fears [that] reflect those that occur in community settings throughout the country” towards gender non-conforming people. A prison setting is very different from any other “community setting,” but there was no reflection on that. They treated the concerns by female inmates as a matter of “bias”: A woman with a history of abuse at the hands of males who reacts in fear in the presence of males is treated as “implicit bias” instead of a reasonable trauma response; a man who reveals himself to be a man in both behavior and anatomy is treated as “confirmation bias” instead of clear, objective truth.

The denial was echoed under “Behavior and Cultural Change” on the following page, where TMG, Inc. emphasized the needs of males identifying as women and wrote sympathetically of the plight of males identifying as women in response to legitimate concerns voiced by female inmates.

Furthermore, on page 26 under “Accountability and Consistency,” TMG, Inc. stated:

“Assessors spoke with some cisgender women who reported hearing about incidents of violence or inappropriate sexual behavior by transgender women and being fearful even if they had not experienced these things.”

Besides the tone of ‘If it didn’t happen to you, it didn’t happen at all,’ TMG, Inc. trivialized these fears as a matter of women not knowing how to respond to “bullying” without acknowledging the power dynamic inherent within.

Under “Relationships” on page 26, TMG, Inc. mentioned that some women did not feel safe in the presence of males while other women were fine with them, and the matter of men identifying as women was considered moot since “[they] were treated like women” before S.B. 132. Again, this demonstrates TMG, Inc.’s lack of thought in how exploitable the new policy may be.

This is all very concerning, but perhaps most concerning was TMG, Inc. noting on page 28 under “Data and Numbers,” that CDCR professionals admitted there were concerns about the accuracy of their data. If the CDCR is not accurately tracking data regarding the inmate population and incidences of concern, they cannot adjust policy accordingly to keep all who are housed safe. The CDCR admits on their S.B. 132 FAQ that they do not note “gender identity” in their reports of sexual assault. So, how would anyone be able to know that the risks of S.B. 132 haven’t been outweighing the supposed benefits to accommodating a handful of male offenders?

In conclusion, The Moss Group, Inc. did its part to parody a proper assessment of a government policy, but it is deplorable to call such willful ignorance applied in callousness against women a “success.” Women do not exist to make men more comfortable, and our needs must be taken into account in a sincere and thoughtful manner.