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Through a cooperative agreement between BJA and NCCD

Cross-Gender Supervision

1a. Does the standard that requires the facility to enable inmates to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia apply equally to viewing that is done remotely via recorded or live video camera feed?

1b. Does this standard prohibit opposite-gender staff from viewing inmates in their beds either through direct viewing or remotely by video camera? 

1c. How do these prohibitions affect the cross-gender staffing of dormitory settings and the viewing of video cameras in dormitory settings?

(The following response answers all three questions.)

Yes. The intent of PREA Standards 115.15, 115.115, 115.215, and 115.315 (limits to cross-gender viewing and searches), subsection (d) is to provide inmates with the ability to shower, use the toilet, and change their clothes without being viewed by nonmedical staff of the opposite gender. The standard also functions to ensure that inmates have the information they need in order to cover up when opposite-gender staff members are working in their housing areas. The exception for viewing incidental to routine cell checks acknowledges that opposite-gender staff will work in housing areas and may see an inmate naked in his/her cell while conducting routine cell checks, but this is paired with the requirement that opposite-gender staff announce their presence to enable inmates to cover up during those periods if they do not wish to be viewed. Therefore, to the extent that cameras are focused on an area in which inmates are likely to be undressed or toileting, such as showers, bathrooms, and individual cells, the cameras should only be monitored by officers or nonmedical administrators of the same gender as the inmates viewed through the camera.

Practically, most cameras in correctional facilities are focused on common areas, including dayrooms, hallways, recreation areas, etc. In dormitory units, cameras may be in the common area that includes inmate beds. Cameras are rarely located within shower or toilet areas. It is acknowledged that there is a diminished expectation of privacy in the open area of a dormitory setting or other common areas of correctional facilities. In addition, most facilities have rules prohibiting inmates from disrobing or being unclothed in common areas. If this is the case and these rules are enforced, cameras focused on common areas, including dormitory sleeping units, may be monitored by either gender.

With the exception of close-observation or suicide watch cells, cameras generally are not located in single cells. It is reasonable to assume that inmates will change clothes or use the toilet within an individual cell. Attempts to provide privacy in instances of close observation or suicide watch, such as digitally obscuring the toilet area or providing a privacy screen for some portion of the cell, would likely negate the officer’s ability to properly monitor the individual via camera. Therefore, unless exigent circumstances prevent it, cameras focused within single cells should only be monitored by officers or nonmedical administrators of the same gender as the inmates viewed through the camera. While same-gender observation is preferable because of the importance of monitoring inmates identified as being at high risk for self-harm or who are actively suicidal, cross-gender camera viewing of inmates in suicide watch cells is permissible if operationally indicated.

Finally, in order to maintain the ability to conduct thorough and effective investigations and incident reviews involving sexual abuse, sexual harassment, and other misconduct, appropriately trained internal and external investigators and senior facility and agency administrators are not prohibited by this rule from viewing cross-gender recorded camera footage in conjunction with an investigation or incident review.

Last updated March 26, 2014


2. Please explain the adult cross-gender viewing and searches standard.

At its most basic, the standard has three parts. First, it prohibits all cross-gender strip and body cavity searches except in exigent circumstances and disallows the use of cross-gender pat searches for female inmates in jails, prisons, and community confinement facilities (the juvenile facility standards prohibit cross-gender pat searches of both male and female residents). Second, it provides for a “knock and announce” practice when an opposite gender staff member enters a housing unit and, more generally, provides that facilities are to implement policies and procedures that enable inmates to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia, except in exigent circumstances or when such viewing is incidental to routine cell checks. Third, the standard also provides protection from intrusive searches for the purpose of determining gender for transgender or intersex inmates.

As a practical matter, many agencies already do only same-gender pat-down searches. For example, some juvenile agencies have BFOQ positions based on the privacy rights of girls, and some adult jails that house immigration detainees who are Muslim have banned female staff from searching those detainees. Other agency practices consistent with this standard include knock and announce policies, the use of privacy shields in shower and bathroom areas, and staffing patterns that ensure the availability of male and female staff to perform searches when necessary.

Furthermore, in crafting the final rule, DOJ determined that at least at least 27 states ban the practice, and that it is common practice in several other states for male officers to perform pat-down searches of female prisoners only under exigent circumstances. DOJ believes that adopting such a practice furthers PREA’s mandate without compromising security in corrections settings, infringing impermissibly on the employment rights of officers, or adversely affecting male inmates.

In order to mitigate agency burdens for implementing the staffing changes that PREA standards may require for jails, prisons, and community confinement facilities, DOJ has provided that agencies will have additional time to come into compliance with this particular standard (August 2015, or August 2017 for facilities whose rated capacity is less than 50 inmates). 

DOJ is aware that a prohibition on certain cross-gender searches and viewing will not solve the problem of sexual abuse in totality. DOJ is hopeful that adequate training of staff on conducting searches in a professional and respectful manner will decrease the likelihood of reports of sexual abuse due to an intrusive or improperly conducted search.

Last updated February 7, 2013.


3. Can you please clarify the parameters of conducting a search of a transgender or intersex inmate/resident?

An agency cannot search or physically examine transgender or intersex inmates/residents/detainees for the sole purpose of determining their genital status. As noted in PREA Standards 115.15(d), 115.115(d), 115.215(d), and 115.315(d), if an inmate’s, resident's or detainee's genital status is unknown, an agency can determine it through conversations with the inmate/resident/detainee, by reviewing medical records, or, if necessary, by learning that information as part of a broader medical examination conducted in private by a medical practitioner. Additionally, agencies must provide training to security staff in how to conduct cross-gender pat-down searches and searches of transgender and intersex inmates/residents/detainees. 28 C.F.R §§ 115.15, 115.115, 115.215, 115.315. Security staff must conduct these searches in a professional and respectful manner; in the least intrusive manner possible, consistent with security needs; and only if a search needs to occur under exigent circumstances. Id.

Operationally, three options are in current practice for searches of transgender or intersex inmates/residents/detainees: 1) searches conducted only by medical staff; 2) searches conducted by female staff only, especially given there is no prohibition on the pat-searches female staff can perform (except in juvenile facilities); and 3) asking inmates/residents/detainees to identify the gender of staff with whom they would feel most comfortable conducting the search. 

Last updated February 7, 2013. 

 

4.  Is it ever appropriate for a transgender or intersex inmate or resident to be searched by both a male officer and a female officer, the male officer searching the parts of the body that are anatomically male and the female officer searching parts of the body that are anatomically female?

No.  The gender of the staff member searching a transgender or intersex inmate or resident will depend on the specific needs of the individual inmate or resident and on the operational concerns of the facility.  Under most circumstances, this will be a case-by-case determination, which may change over the course of incarceration and should take into consideration the gender expression of the inmate or resident. 

Making accommodations, if necessary, to search individuals according to gender identity would not violate the prohibitions on cross-gender searches in §§ 115.15 (a)-(c) and §§ 115.315 (a)-(c).  Further, § 115.15(f) and § 115.315(f) state that the agency shall train security staff in how to conduct searches of transgender and intersex inmates or residents in a professional and respectful manner and in the least intrusive manner possible consistent with security needs.  Requiring two officers to search transgender inmates or residents would be more intrusive than necessary.

For more information on addressing the needs of transgender or intersex inmates, please see the National Institute of Corrections resource page at http://nicic.gov/lgbti.

Last updated July 3, 2014.


5. What gender should transgender staff be considered for the purposes of complying with cross-gender viewing and search prohibitions established in § 115.15? 

Facilities should verify whether there are any specific legal authorities, statutes, or personnel policies that may be relevant to this determination.  Absent any specific authorities, facilities should make an individualized determination based on the identified gender of the staff member, and not solely on the basis of the biological gender.  This decision should be made at the request of, and in conjunction with, the transgender staff member.  The determination may also change during the course of employment, as part of an on-going adjustment process, or as the staff member gains real-life experience living as a person of the identified gender.

Last updated April 23, 2014


6. What is required by the cross-gender announcement in Standard 115.15(d) (adult prisons and jails; and 115.315(d) (juvenile facilities with discrete housing units)?

In adult prisons and jails, and in juvenile facilities with discrete housing units, “staff of the opposite gender” are required to “announce their presence when entering an inmate housing unit.” This is sometimes referred to as the “cover-up rule” and is intended to put inmates on notice when opposite-gender staff may be viewing them. The announcement is required any time an opposite-gender staff enters a housing unit; however, the Department has determined that the purpose of the Standard may be fully realized by requiring the announcement only when an opposite-gender staff enters a housing unit where there is not already another cross-gender staff present. Accordingly, the Department has determined that compliance with the Standard will be achieved when an announcement is made, as follows:

When the status quo of the gender-supervision on a housing unit changes from exclusively same gender, to mixed- or cross-gender supervision, the opposite-gender staff is required to verbally announce their arrival on the unit. The announcement is required for both custody and non-custody staff, and may include, for example, a clinician or case worker who spends time on the unit, or senior staff making supervisory rounds.

Note, a distinct buzzer, bell, or other noisemaking device may be substituted for a verbal announcement, so long as: (1) the buzzer emits a distinctive sound that is noticeably different from other common noisemakers; (2) inmates are adequately educated on the meaning of the buzzer sound and understand its purpose; and (3) the buzzer is not also used for other events at the facility. If used, such buzzers should be used in the identical manner that verbal announcements as required by the above guidance (e.g., when opposite- gender staff enter a housing unit).

The Department has received a number of inquiries about whether the following activities would constitute compliance:

  • Posting a notice on the housing unit informing the inmates that they may be subject to cross-gender supervision at any time.
  • Making a single announcement at the beginning of each shift indicating that inmates may be subject to cross-gender supervision at any time.
  • Making a single announcement at the beginning of a shift indicating that an opposite-gender staff is assigned to the unit for that particular shift.
  • Toggling a certain color light or flickering the lights in the unit as a signal to the inmates that opposite-gender staff may be on the unit.

The Department has determined that, while these other practices may be helpful supplements to the required verbal announcement, none of them is sufficient to comply with the Standard and compliance measure, as articulated above.

The Department also notes that there is no precise verbal language required by the cross-gender announcement Standard; only that the language put inmates or residents on sufficient notice that an opposite-gender staff member is entering the housing unit. Hence, such language as “man on the unit” or “Officer Smith on the unit” may both meet this requirement.

Consistent with Standard 115.16 and 115.316, the agency shall take appropriate steps to ensure that inmates with disabilities have an equal opportunity to participate in or benefit from all aspects of the agency’s efforts to prevent, detect, and respond to sexual abuse and sexual harassment. Accordingly, additional systems may be needed to supplement the verbal cross-gender announcement in units with inmates who are deaf or hard of hearing.


[1] In lockups and community confinement facilities, and in juvenile facilities that do not have discrete housing units, opposite-gender staff are only required to “announce their presence when entering an area where” detainees and residents “are likely to be showering, performing bodily functions, or changing clothing.” 28 C.F.R. §§ 115.115(c), 115.215(d), and 115.315(d).

Last updated February 19, 2014. 

 

7. Does the opposite-gender “announcement” requirement in 115.15(d) conflict with the requirement in 115.13(d) that supervisory staff conduct unannounced rounds to deter staff sexual abuse and sexual harassment?

No.   Section 115.13(d) determines when rounds within an institution should occur; section 115.15(d) sets forth the requirements of how rounds should be conducted in housing units.

Section 115.13(d) requires both a policy and practice of having intermediate-level or higher level supervisors conducting and documenting unannounced rounds to identify and deter staff sexual abuse and sexual harassment.   Such policy and practice shall be implemented for night shifts as well as day shifts.  The term “unannounced” in this standard is intended to ensure that staff are not unnecessarily alerted to the periodic arrival on a housing unit of management personnel.  Accordingly, this section specifically prohibits staff from alerting other staff members that these rounds are occurring, unless such announcement is related to legitimate operational functions.  Supervisory staff performing rounds at unexpected, non-routine times helps deter incidents of sexual abuse and sexual harassment.

Section 115.15 (d), on the other hand, requires a facility to implement policies and procedures that enable inmates to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia, except in exigent circumstances or when such viewing is incidental to routine cell checks.  Such policies and procedures shall require staff of the opposite gender to announce their presence when entering an inmate housing unit.   The announcement in this standard is intended to put inmates on notice as to the presence of opposite-gender staff on the unit.  This regulation is meant to balance privacy concerns of the inmate population with the security and operational needs of the facility.

Accordingly, intermediate-level or higher level supervisors performing the unannounced supervisory rounds pursuant to 115.13(d) are not exempt from the cross-gender announcement required pursuant to 115.15(d). For additional information regarding the cross-gender announcement requirement, see FAQ #5 above (in the Cross Gender Supervision section).

Last updated June 11, 2014.

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