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The Oregon Administrative Rules contain OARs filed through May 15, 2017
 
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DEPARTMENT OF CORRECTIONS

 

DIVISION 210

NONCONFORMING GENDER (INMATE)

291-210-0010

Authority, Purpose, and Policy

(1) Authority: The authority for these rules is granted to the Director of the Department of Corrections in accordance with ORS 179.040, 423.020, 423.030, and 423.075.

(2) Purpose: The purpose of these rules is to establish Department of Corrections policy and procedures for the identification, assessment, review, and management of inmates who present or identify as transgender or intersex.

(3) Policy: Within the inherent limitations of resources, and the need to maintain facility security, order and discipline, the health and safety of inmates and staff, and to further inmate rehabilitation, it is the policy of the Department of Corrections, based on available information, to:

(a) Seek to identify inmates that present with as transgender or intersex upon delivery to the Department of Corrections during intake processing; and

(b) Assess, review, and manage inmates who identify as transgender or intersex on a case-by-case basis, in a respectful manner, considering each inmate’s individual circumstances, including but not limited to the inmate’s physical sexual characteristics, gender identification, physical presentation, behavior and programming needs.

Stat. Auth.: ORS 179.040, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 423.020, 423.030 & 423.075
Hist.: DOC 15-2014(Temp), f. & cert. ef. 6-25-14 thru 12-22-14; DOC 20-2014, f. & cert. ef. 10-13-14; DOC 1-2017(Temp), f. & cert. ef. 2-15-17 thru 8-13-17

291-210-0020

Definitions

(1) Behavioral Health Services (BHS): A Department of Corrections Health Services unit with primary responsibility for the assessment and treatment of inmates with mental illness and developmental disabilities.

(2) Gender: The socially constructed roles, behaviors, activities, and attributes that a given society typically or historically assigns to men and women.

(3) Gender Identity: Distinct from sexual orientation and refers to a person’s internal, deeply felt sense of being male, female or something else.

(4) Intersex: A condition in which a person is born with external genitalia, internal reproductive organs, chromosome patterns, or an endocrine system that does not fit typical definitions of male or female.

(5) PREA Compliance Manager: A management staff person designated by the institution functional unit manager with sufficient time and authority to coordinate the facility’s efforts to comply with the federal PREA standards.

(6) Transgender and Intersex Committee: A multi-disciplinary working group of ODOC officials that reviews and determines appropriate housing assignments, recommends safety plans and provides support for inmates who identify as transgender or intersex. The committee will include at least one individual with knowledge of gender issues facing transgender and intersex inmates.

(7) Transgender: A person who identifies with or expresses a gender identity that differs from their assigned sex at birth.

Stat. Auth.: ORS 179.040, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 423.020, 423.030 & 423.075
Hist.: DOC 15-2014(Temp), f. & cert. ef. 6-25-14 & 12-22-14; DOC 20-2014, f. & cert. ef. 10-13-14; DOC 1-2017(Temp), f. & cert. ef. 2-15-17 thru 8-13-17

291-210-0030

Identification, Assessment, Review, and Management of Inmates who Identify as Transgender or Intersex at Intake

(1) Identification at Intake: Staff shall seek to identify inmates who present or identify as transgender or intersex upon delivery to the Department of Corrections during intake processing, based on available information from the county, the inmate (including the inmate’s stated gender identity, if any), and as developed by staff.

(2) Appropriate and Professional Questioning:

(a) Staff shall interview inmates regarding their sex and gender identity only when necessary to develop information for making appropriate intake and housing assignments, classification assignments, programming assignments; to provide health care and health assessments; and as necessary for the inmate's health or safety, or for the safe, secure, and orderly operation of the facility.

(b) Staff shall interview inmates in a private and professional manner to avoid subjecting the inmate to the risk of possible abuse or ridicule.

(c) Designated staff shall submit information to the TAIC for review and determination of appropriate housing placement.

(3) Initial Placement in Holding Cell: When staff identify an inmate who presents or identifies as transgender or intersex during intake processing, staff shall place the inmate in a holding cell with no other inmates present to provide for the inmate's safety and to provide the inmate with a measure of privacy pending further review.

(4) Unclothed Searches:

(a) Unclothed searches are performed by appropriate security staff on each inmate upon the inmate's delivery to the facility. Ordinarily, a security staff member of the same gender as the inmate will be assigned to conduct the unclothed search.

(b) When an inmate identifies or presents as transgender or intersex during intake, staff shall ask the inmate to identify whether they prefer that male or female staff conduct the skin search.

(c) If an inmate who has not previously been identified as transgender or intersex during intake processing is later identified by security staff as presenting or identifying as transgender or intersex during the conduct of an unclothed search, staff will immediately cease conducting the search and ask the inmate the gender of security staff they prefer to conduct the unclothed search. Staff will accommodate the inmate’s stated preference.

(5) Intake Housing Assignment:

(a) Following initial placement in a holding cell, an inmate who identifies as transgender or intersex during intake processing shall be assigned to a single cell in the Infirmary, on a space available basis, until the appropriate housing for the inmate has been staffed by the Transgender and Intersex Committee.

(b) If there are no infirmary beds available, the functional unit manager or designee will assign the inmate to appropriate alternative housing in the facility, and document the reasons for the alternative housing assignment.

(6) Clothing at Intake Center: Inmates who identify as transgender or intersex at intake will be issued the following clothing to wear during intake processing — two sets of scrubs; two t-shirts; sweatshirt; two bras (if requested or needed); underwear (type issued based on inmate request); pajamas (type issued based on inmate request); and socks and intake shoes.

(7) Recreation at Intake Center: Inmates who identify as transgender or intersex at intake will be afforded the opportunity for out of cell time on the same basis as other inmates assigned to the unit they are being housed in or as facility operation allows. A minimum out of cell time for all inmates will be three times a week or as staff availability and circumstances allow.

(8) Shower and Hygiene at Intake Center: Inmates who identify as transgender or intersex at intake shall be given the opportunity to shower privately from other inmates.

Stat. Auth.: ORS 179.040, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 423.020, 423.030 & 423.075
Hist.: DOC 15-2014(Temp), f. & cert. ef. 6-25-14 thru 12-22-14; DOC 20-2014, f. & cert. ef. 10-13-14; DOC 1-2017(Temp), f. & cert. ef. 2-15-17 thru 8-13-17

291-210-0040

Facility and Housing Assignments

(1) The Transgender and Intersex Committee will collect and review relevant information regarding inmates who identify as transgender or intersex and make appropriate facility and housing assignment decisions on a case-by-case basis.

(2) The Transgender and Intersex Committee will notify staff at the receiving facility of facility and housing assignment decisions regarding the inmate prior to the inmate’s transfer.

(3) When an inmate is assigned to a facility by the Transgender and Intersex Committee, designated facility staff will determine and assign the inmate to appropriate housing within the facility unless the inmate’s housing assignment has been specifically directed by the Transgender and Intersex Committee.

(4) An inmate who identifies as transgender or intersex may not be transferred to another facility without Transgender and Intersex Committee approval.

Stat. Auth.: ORS 179.040, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 423.020, 423.030 & 423.075
Hist.: DOC 1-2017(Temp), f. & cert. ef. 2-15-17 thru 8-13-17

291-210-0050

Identification, Assessment, Review, and Management of Inmates who Identify as Transgender or Intersex after Facility Assignment

(1) Identification After Facility Assignment:

(a) If an inmate identifies as transgender or intersex after being assigned to a facility, staff shall notify Behavioral Health Services and the PREA Compliance Manager at the receiving facility. The PREA Compliance Manager will notify the Transgender and Intersex Committee and gather information for the Transgender and Intersex Committee’s review.

(b) If an inmate who has not been identified as transgender or intersex during intake processing is later identified by security staff as transgender or intersex during the conduct of an unclothed search, staff will immediately cease conducting the search and ask the inmate the gender of security staff they prefer to conduct the unclothed search. Staff will accommodate the inmate’s stated preference.

(2) Appropriate and Professional Questioning:

(a) Behavioral Health Services and the PREA Compliance Manager shall interview the inmate regarding the inmate’s assigned sex at birth, gender identity, gender expression, and security concerns.

(b) Behavioral Health Services will submit information to the Transgender and Intersex Committee for its review, upon approval from the inmate. The PREA Compliance Manager will submit information to the Transgender and Intersex Committee for its review.

(c) Staff shall interview the inmate in a private setting and in a professional manner to avoid subjecting the inmate to the risk of possible abuse or ridicule.

(3) Unclothed Searches:

(a) After assignment and delivery to a permanent facility unclothed searches of the inmate will ordinarily be conducted by male staff in facilities that are generally designated to house male inmates, and by female staff in facilities that are generally designated to house female inmates.

(b) However, the inmate may request approval from the Transgender and Intersex Committee, via an inmate communication (CD214), to have unclothed searches conducted by security staff of the other gender, subject to staff availability and circumstances.

(c) If the inmate’s request is approved by the Transgender and Intersex Committee, security staff shall accommodate the inmate’s stated preference when staff availability and circumstances allow.

(4) Department-Issued Clothing:

(a) Female undergarments may be issued to and worn by the inmate when assigned to a designated male facility if assigned to the inmate by the PREA Compliance Manager.

(b) Male undergarments may be issued to and worn by the inmate when assigned to a designated female facility if assigned to the inmate by the PREA Compliance Manager.

(5) Shower and Hygiene:

(a) The inmate may request approval from the Transgender and Intersex Committee to be afforded the opportunity to shower privately from other inmates, subject to staff availability and circumstances.

(b) If the inmate’s request is approved by the Transgender and Intersex Committee, security staff shall accommodate the inmate’s stated preference when staff availability and circumstances allow.

Stat. Auth.: ORS 179.040, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 423.020, 423.030 & 423.075
Hist: DOC 1-2017(Temp), f. & cert. ef. 2-15-17 thru 8-13-17

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