Tom Cotton Senate bill would separate prison inmates by birth gender, not identity

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A prisoner's gender at birth, not their gender identity, would determine where they would be housed, under a U.S. Senate bill proposed last week by Republican Tom Cotton of Arkansas.

The bill introduced Wednesday came in response to a report that President Biden may sign an executive action requiring the Federal Bureau of Prisons to allow transgender inmates to go to a prison that fits their gender identity.

"President Biden’s plan to house male and female prisoners together will put women in danger," Cotton said in a statement. "Documented cases prove that placing men — including ones who ‘identify’ as female — in women’s prisons puts female inmates at increased risk of sexual assault. My bill will stop the president’s ill-conceived plan and keep men and women separated in federal prison."

"My bill will stop the president’s ill-conceived plan and keep men and women separated in federal prison."

— U.S. Sen. Tom Cotton, R-Ark.

U.S. Sen. Tom Cotton, R-Ark., speaks on Capitol Hill, Oct. 27, 2021.  (Getty Images)

Last November, the Women’s Liberation Front sued the state of California for its policy allowing transgender inmates to be housed according to their identity. One plaintiff claimed she had been sexually assaulted by an inmate who transferred from a men's prison, the Los Angeles Times reported. 

"The foundational basis of our lawsuit is that these are male offenders being housed in women’s prisons," Lauren Adams, of the Women’s Liberation Front, said in a statement, according to the Times. "To pretend that they are female, in language or what we say about them or how we talk about them, goes against the whole basis of the lawsuit."

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Biden’s Department of Justice sided with a transgender inmate last April who identifies as female and claimed she had been sexually assaulted after being forced to stay in a men’s prison. She sued the Georgia Department of Corrections. 

The DOJ in a statement of interest in the case asserted that prisons must provide safe accommodations for all prisoners, including transgender inmates, as required by the Eighth Amendment, The Advocate reported. 

A report said President Biden, seen in the White House Oct. 4, may sign an executive action requiring the Federal Bureau of Prisons to allow inmates to go to a prison that fits their gender identity. (Associated Press)

"Prison officials violate the Constitution by (1) categorically refusing to assign transgender prisoners to housing that corresponds to their gender identity even if an individualized risk assessment indicates that doing so is necessary to mitigate a substantial risk of serious harm, and (2) failing to individualize the medical care of transgender prisoners for the treatment of gender dysphoria," the DOJ said. 

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Cotton said his Preventing Violence Against Female Inmates Act would both forbid the Bureau of Prisons in using gender identity for housing assignments and could result in state correctional facilities losing certain federal law enforcement grant funds if they do. 

The bill would allow prisons to house transgender inmates in a separate location, a release from Cotton’s office said. 

"For example, a prison would be free to set up specific housing units for transgender inmates based on security, medical, or programming needs, but would not be allowed co-locate those inmates with inmates of the opposite sex," the release said.