The most revealing test of current laws regarding transgender rights in Massachusetts is to observe how the state treats transgender people in its custody. In this regard the Commonwealth is failing. For evidence, look no further than the Mass Department of Correction’s official statement in response to my inquiry about the failure to update its policy on housing transgender inmates to match the inmate’s gender identity [emphases in bold mine]:

“The public accommodations statute, G.L. c. 272, s 92A, was recently amended to prevent discrimination in public accommodations against individuals on the basis of their gender identity. The statute defines a “place of public accommodation, resort or amusement” as “any place, whether licensed or unlicensed, which is open to and accepts or solicits the patronage of the general public.” G.L. c. 272, s 92A.  The Department of Correction maintains correctional facilities for the custody, control and rehabilitation (reentry) of committed offenders. The Department’s correctional facilities do not meet the definition of a place of public accommodation under G.L. c. 272, s 92A since they are not open to the general public nor solicit the patronage of the general public. Accordingly, the provisions of the public accommodations statute are not applicable to state correctional facilities.”

On October 1, the public accommodations law, which was signed by Gov. Charlie Baker last July after a significant amount of public debate and outcry, came into effect. The law closed the loophole allowing businesses and places with gender segregated areas to discriminate against transgender people by protecting everyone’s right to use the gender segregated facilities that match their gender identity (a term defined in the MGL as part of a 2011 act relative to gender identity that bans discrimination against transgender people). The DOC has not updated its policy since May of 2016—before the law was passed. The policy states that, ultimately, the DOC will choose which gender facility to place inmates, a process that may include housing people in hospitals or prisons that do not correspond with their gender identity.

The DOC’s policy is not about inmates who merely claim they are transgender—it applies to inmates who have been medically diagnosed as having gender dysphoria. The policy is officially named, “IDENTIFICATION, TREATMENT AND CORRECTIONAL MANAGEMENT OF INMATES DIAGNOSED WITH GENDER DYSPHORIA,” and contains provisions for the inmate to access gender identity-appropriate clothes while the inmate stays in a facility that does not match their gender identity. This policy outlines, in no uncertain terms, how the DOC is, and will continue, housing people who the Commonwealth would legally consider to be the opposite gender in the wrong gender prison.

In previous reporting I have noted that the DOC’s housing policy does not consider the legal gender of the inmate, which is troubling because the department’s policy would, in some instances house legally female transgender inmates in prisons for men. As I also reported before, there is an incredible risk of sexual assault that transgender women face when incarcerated in men’s prisons; one study found that 59 percent of female-identified inmates in men’s facilities were sexually assaulted (compared to 4 percent of male-identified inmates).

According to the current DOC policy, transgender inmates undergo a risk assessment every six months, and those assessments will be factored into the department’s decision on where to house those individuals. The policy includes a series of different assessments that are then weighed against any “operational concerns” (a term left nebulous in the policy) that the inmate’s housing might raise.  The DOC sets out these dehumanizing (a small enough transwoman might be more likely to be designated a potential victim which in turn might lead to more consideration of her housing) hoops for inmates to jump through, but the policy doesn’t even present a clear line for when the DOC would actually house someone in the appropriate prison. According to the policy, the department ultimately decides where to place the inmate regardless of what the assessments might suggest.

Contacted for comment, DOC spokesman Christopher Fallon explained that he had spoken to his department’s director of behavioral health, who believes they are “in compliance” because prisons are “not really public facilities.” The DOC’s position, confirmed in its official statement, is that the anti-discrimination and public accommodations laws regarding gender identity passed in 2011 and 2016 simply do not apply to them. This governmental agency’s director of behavioral health is asserting that a loophole allows them to discriminate against people in their care and custody in ways that your local movie theater would be sued for.

Spokesman Fallon added a hypothetical, “I just want you to understand—I know when it came down to everything with transgender people—we’re also charged with safety and security. So let’s say somebody who [feels] that they are a different gender then how they were born, if they murdered their spouse. I’m going to say if they were a biological male but they felt like they were female, and that was their identity, but they murdered—they had violence against women. I don’t know how we sort of weigh that out. But I think that’s an awesome question. Like, how do we make that determination? And does safety and security of the female population at Framingham trump [the gender identity of transgender inmates]?”

Actually, it’s not an “awesome question.” But here is an awesome question: Why does the DOC believe it is allowed to house transgender people in the wrong gender facility? Mass does not hold cisgender female inmates who have a history of violence against women in men’s facilities. The same risk assessment is used to house potentially aggressive cisgender female inmates in more appropriate areas of the female facility, and to make sure they aren’t put in with at-risk women. Removing a transwoman from the female facility for having the same history as the ciswoman who gets to remain in the female facility is discriminatory.

The policy is discriminatory and certainly allows the DOC to hold transgender inmates in inappropriate facilities. The Commonwealth recognizes transgender people as being the gender they transition to earlier than the DOC, and there is no valid reason why the department should even be making that determination. The DOC’s official stance boils down to: We’re allowed to discriminate. This is unacceptable, and every day that the department doesn’t fix this policy, transgender inmates are being psychologically harmed by being left in the wrong facility, and face immense risk of sexual assault.

This column was produced in collaboration with the Boston Institute for Nonprofit Journalism. Find out how you can support independent media in New England at binjonline.org.