bill housing inmates by biological sex

The text as introduced · 976 words

89R68 MCF-F

By: Swanson
H.B. No. 403

A BILL TO BE ENTITLED

AN ACT

relating to housing and placement of inmates and children according

to biological sex.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. This Act may be cited as the Female Prisoner

Protection Act.

SECTION 2. (a) The legislature finds that:

(1) courts have repeatedly affirmed that the

separation of inmates by sex is unquestionably constitutional so

long as it serves a government interest, see Women Prisoners of the

D.C. Dep't of Corr. v. District of Columbia , 93 F.3d 910, 926 (D.C.

Cir. 1996);

(2) courts have affirmed that the government cannot

lawfully act in a manner that evinces the belief that women are

second-class citizens or unworthy of the consideration provided

male offenders, see Pitts v. Thornburgh , 866 F.2d 1450, 1459 (D.C.

Cir. 1989); and

(3) courts have repeatedly recognized that a

correctional system has a right to ensure women are protected from

sexual abuse and physical violence as well as having equal access to

all inmate rights, correctional programs, and opportunities for

rehabilitation.

(b) The purpose of this Act is to further the governmental

interest of ensuring that females confined or placed in facilities

operated by the Texas Department of Criminal Justice and Texas

Juvenile Justice Department are protected throughout their

sentence and have equal, safe access to basic facilities afforded

to all confined persons.

SECTION 3. Section 51.12(m), Family Code, is amended to

read as follows:

(m) The Texas Juvenile Justice Department may deny,

suspend, or revoke the registration of any facility required to

register under Subsection (i) if the facility fails to:

(1) adhere to all applicable minimum standards for the

facility; [ or ]

(2) timely correct any notice of noncompliance with

minimum standards ; or

(3) strictly comply with the requirements of Section

51.127 .

SECTION 4. Section 51.125(e), Family Code, is amended to

read as follows:

(e) The Texas Juvenile Justice Department may deny,

suspend, or revoke the registration of any facility required to

register under Subsection (d) if the facility fails to:

(1) adhere to all applicable minimum standards for the

facility; [ or ]

(2) timely correct any notice of noncompliance with

minimum standards ; or

(3) strictly comply with the requirements of Section

51.127 .

SECTION 5. Chapter 51, Family Code, is amended by adding

Section 51.127 to read as follows:

Sec. 51.127. PLACEMENT OF JUVENILES BASED ON BIOLOGICAL

SEX. (a) In this section, "department" means the Texas Juvenile

Justice Department.

(b) A juvenile board created under Chapter 152, Human

Resources Code, or the department, as applicable, shall place a

child in a detention or correctional facility according to the

child's biological sex, as determined by:

(1) the child's official birth certificate, if the

child's biological sex is correctly stated on the certificate as

described by Subsection (c); or

(2) if the child's official birth certificate

described by Subdivision (1) is unobtainable, another government

record that states the child's biological sex.

(c) For purposes of this section, a statement of a child's

biological sex on the child's official birth certificate is

considered to have correctly stated the child's biological sex only

if the statement was:

(1) entered at or near the time of the child's birth;

and

(2) not modified except as necessary to correct any

type of scrivener or clerical error in the child's biological sex.

(d) The vital statistics unit of the Department of State

Health Services may not charge a juvenile board or the department a

fee to issue a birth certificate for use under this section.

(e) Except as provided by Subsection (b), a juvenile board

or the department, as applicable, shall, in accordance with the

Prison Rape Elimination Act National Standards (28 C.F.R. Part 115,

Subpart D), consider the unique safety needs of each child and take

appropriate action to ensure a child's health and safety.

(f) A juvenile board and the Texas Juvenile Justice Board

shall adopt any rules necessary to implement this section. The

rules must ensure compliance with state and federal law.

SECTION 6. Subchapter D, Chapter 501, Government Code, is

amended by adding Section 501.115 to read as follows:

Sec. 501.115. HOUSING OF INMATES ACCORDING TO BIOLOGICAL

SEX. (a) The department shall house inmates in facilities,

dormitories, and cellblocks according to the inmate's biological

sex, as determined by:

(1) the inmate's sex organs as determined during the

intake screening required under the Prison Rape Elimination Act

National Standards (28 C.F.R. Section 115.41); and

(2) a statement of the inmate's biological sex on the

inmate's official birth certificate if the statement was:

(A) entered at or near the time of the inmate's

birth; and

(B) not modified except as necessary to correct

any type of scrivener or clerical error in the inmate's biological

sex.

(b) If there is a conflict between the determinations made

under Subsections (a)(1) and (2), the department shall defer to

Subsection (a)(2) for the purpose of determining an inmate's

biological sex.

(c) The vital statistics unit of the Department of State

Health Services may not charge the department a fee to issue a birth

certificate for use under this section.

(d) Except as provided by Subsection (a), the department

shall, in accordance with the Prison Rape Elimination Act National

Standards (28 C.F.R. Part 115), consider the unique safety needs of

each inmate and take appropriate action to ensure an inmate's

health and safety.

(e) The board shall adopt any rules necessary to implement

this section. The rules must ensure compliance with state and

federal law.

SECTION 7. This Act takes effect immediately if it receives

a vote of two-thirds of all the members elected to each house, as

provided by Section 39, Article III, Texas Constitution. If this

Act does not receive the vote necessary for immediate effect, this

Act takes effect September 1, 2025.