Vermont Legislature SmartTranscripts:

[Rep. Alice M. Emmons (Chair)]: Welcome, folks. This is House Corrections and Institutions. It is Thursday, January 22. We are back from the floor, and we're picking up where we left off the other day with our legal counsel in discussion of H550. We're getting a walkthrough of the bill, and we are starting on section three. So Hillary, if you could identify yourself for the record.

[Hillary Chittenden (Office of Legislative Counsel)]: Yes, for the record, Hillary Chittenden for the Office of Legislative Counsel. I'll start with section three and then touch on the two topics raised by some questions yesterday. So this is on page five. Top of page five. As I mentioned yesterday, this bill touches on two areas of standards. There is classification, placement, and search policy, which is section two that we talked about yesterday. And the second area is with regard to medical care, and that is section three and the one we're talking about now. So current law, as reflected on page five, lines three through four, and a couple lines that follow, is that DOC shall provide health care for inmates in accordance with the prevailing medical standards. The bill would add some additional language to those standards on lines eight through 12, that at all times the department and its contractors shall use best efforts to identify a licensed health care provider with cultural competency to administer health care services to all inmates in the commissioner's custody, including transgender, non binary and intersex inmates. So cultural competency, the bill goes on to define that on page seven. So if you turn to page seven, at the very bottom on lines 19 through 20, the bill provides that cultural competency will have the same meaning as in Title eighteen, eighteen VSA Section two fifty one. It does not repeat it, but I'll give you at least the first part of the definition for reference. And if there are more questions, happy to provide them. But title 18 defines cultural competency, and that's the title of dealing with health. So this is kind of cross referencing how the health title talks about cultural competency. Cultural competency means a set of integrated attitudes, knowledge and skills that enables a healthcare professional to care effectively for patients from cultures, groups and communities other than that of the healthcare profession. And that section in title 18 goes on to add a couple details that we can talk about if you want, but that is how the bill defines cultural competency. Well, then the question for us would be for those health care providers within WellPath, because it is WellPath that's going to be providing this.

[Rep. Alice M. Emmons (Chair)]: Is it a training? Is it a standard that they have to abide by? How do we ensure that with the medical staff, health care provider? Would it be WellCare, it's WellPath itself as the provider, or is it the actual nurses and physicians that we're talking about? And this one talks about health licensed health care provider. Is that the individual folks within WellPath, or is it WellPath I think that

[Hillary Chittenden (Office of Legislative Counsel)]: would be a good question for what it would mean for DOC to implement this. This is DOC and its contractors shall use best efforts. So the statute doesn't require it be one way or another. But I think DOC could share what it would mean for them to do that, whether they would be able to satisfy using best efforts to identify licensed health care providers with cultural competency as defined in the statute through WellPath or otherwise.

[Rep. James Gregoire (Vice Chair)]: Yeah, just checking because I remember we delved into this last year and I just wanted to double check. You say the department and its contractors. I remember we had a discussion last year whether we just say department or department and its contractors because the buck stops at the department. I just wanted to make sure we're consistent with what we did last year We because we beat it to

[Rep. Alice M. Emmons (Chair)]: beat it to death, but we didn't do anything.

[Hillary Chittenden (Office of Legislative Counsel)]: It'll be a good learning point for me either way. So I'm happy to look into this.

[Rep. James Gregoire (Vice Chair)]: I just want to flag that

[Hillary Chittenden (Office of Legislative Counsel)]: one. So

[Rep. Troy Headrick (Ranking Member)]: Katie would know, probably.

[Rep. Alice M. Emmons (Chair)]: And medical care. We redid that whole section. We redid the whole section last year, but we haven't passed the bill.

[Hillary Chittenden (Office of Legislative Counsel)]: I will check with Katie and see what she advises. And when we next return when the committee next returns to this, I can have an answer to

[Rep. Alice M. Emmons (Chair)]: that question. Because we redid the whole structure of that section. We use more the term health care practitioner. Instead of licensed care provider, we did health care practitioner.

[Hillary Chittenden (Office of Legislative Counsel)]: And as I mentioned yesterday, this generally mirrors language from the California law. So it would not surprise me if there is a term here that might not perfectly match you. So I can look at that. And when the committee turns to So we worked on page 32 last year, which was updating this particular section of statute.

[Rep. Alice M. Emmons (Chair)]: Will be a useful reference. Inmates, we didn't pass the bill out, but we may end up working on the bill again because the governor's office is updating the whole MOUD program that's being offered in the correctional facilities, as well as adding on behavioral and therapeutic support. So we're working with Katie to see with the governor's initiative that they are implementing within our Department of Corrections facilities. What we need to update in this particular statute of law and also with the MOUD right now, the law says one thing,

[Hillary Chittenden (Office of Legislative Counsel)]: but the practice that's happening in our facilities is a little different. And the initiative from the governor's office in terms of the court accountability has set more in practice. What is happening now, we have to update the law. Excellent. I will check with Katie about the best way to ensure that the two bills making changes to the same section are doing that.

[Rep. Alice M. Emmons (Chair)]: Since we're working with the 5th Floor and the governor to make sure things are on track. Great. I will flag that for this section. The governor's office. All

[Hillary Chittenden (Office of Legislative Counsel)]: right. Any other questions on the cultural competency lines? So moving forward to page six. This is the other place where the bill would add standards to the medical care section. So I will flag up front that as currently drafted, this is not specifically referring to medical staff or necessarily the medical intake process. So I think something to clarify will be to confirm that this section is meant to refer just to what is happening during medical intake or whether the section is meant to be talking about the department more broadly, in which case it might be better placed where the earlier edits are.

[Rep. Troy Headrick (Ranking Member)]: That's good.

[Hillary Chittenden (Office of Legislative Counsel)]: So just something to consider. So we're at the top of page six. This new section says that when an inmate enters DOC custody, DOC must ask them in a private setting to specify their gender identity, whether the person identifies as transgender, non binary, or intersex, and the person's gender pronoun and honorific. The statute defines gender pronoun and honorific. So if you flip now to page eight, lines one through two define gender pronoun as a third person singular personal pronoun, such as he, she or they. And on page eight, lines three and four, the bill would define honorific as a form of respectful address, typically combined with an individual's surname. Any questions about that first part?

[Rep. Alice M. Emmons (Chair)]: So when you're talking about I was just going back when you started talking about

[Hillary Chittenden (Office of Legislative Counsel)]: section three. That adds a standard to the medical piece. And the question is, is this specific just for these particular situations, or can we define it more broad? Should it be more broad in terms of applying to intakes and classification process throughout the whole system? Exactly. So right now, because it's in the medical care section, it seems like this happens. Care only. Right. So my understanding, and DOC will confirm, but that there is a the bill when the bill discusses intake and placement and classification in the previous section, in section two and seven zero one B, that was referring to a non medical DOC process. It would be useful to clarify whether this section intends to refer to that process or the medical intake process. Or both.

[Rep. Troy Headrick (Ranking Member)]: And I can tell you the intent with both. Yeah, the intent of that we're proving how DOC intersects with folks who identify as transgender, non binary intersex, both with regard to housing placement and with regard to medical impairments. I think this is the general intake. Or both, right? Medical intake can repeat the same clarifications, right?

[Rep. Conor Casey (Member)]: Right. So it could be both.

[Hillary Chittenden (Office of Legislative Counsel)]: Excellent. So as the committee moves forward, we can make sure that any further edits reflect that.

[Rep. Alice M. Emmons (Chair)]: That would be a policy decision that we'd have to

[Rep. Troy Headrick (Ranking Member)]: make. Sure. Okay. I can tell I can just tell you what the intent of bringing the bill

[Hillary Chittenden (Office of Legislative Counsel)]: forward was. Yes. Whatever the committee's intent moving forward with the bill, we can make sure that that is reflected. As drafted right now, I think it's just unclear.

[Rep. Alice M. Emmons (Chair)]: And it's unclear if this is for medical or if it's also to be part of the classification of the person. Yes, whether this applies just

[Hillary Chittenden (Office of Legislative Counsel)]: for medical staff interactions or whether this applies more broadly. The language in section three on page six doesn't specifically refer to any medical proceedings. Right? It says in a private setting during the initial intake and classification process, which could cover nonmedical things. So as the committee discusses. Just want

[Rep. Alice M. Emmons (Chair)]: to thank Kevin takes place out with other items too, because you've got mental health screening, opioid screening.

[Hillary Chittenden (Office of Legislative Counsel)]: Yes. I think

[Rep. Alice M. Emmons (Chair)]: all plays with That's what I'm thinking. How does it all interconnects? They're all happening at intake, and there's different timeframes from when some of that screening assessment needs to be for mental health.

[Hillary Chittenden (Office of Legislative Counsel)]: Yes. I think when we turn to the Priya question afterwards, it will also raise for the committee that it would be useful to have witness testimony from DOC about where some of the screening they currently do may overlap with the bill and what it would look like for them operationally to do some of the things in the bill.

[Rep. Alice M. Emmons (Chair)]: Right. So a lot of it happens on intake and booking. That's where it happens.

[Rep. James Gregoire (Vice Chair)]: You know how it works? Like, if you get picked up and you identify as one gender, do you tell law enforcement like, Okay, you know, I'd like to go to Chittenden or I'd like to go to Northwest if you're in Chittenden County?

[Rep. Alice M. Emmons (Chair)]: I don't know how that works on the law enforcement piece. Have

[Rep. James Gregoire (Vice Chair)]: no idea. Might be an interesting connection, just to point Right.

[Rep. Troy Headrick (Ranking Member)]: Do the various agencies, the various law enforcement agencies have their own protocol for what happens if I've got a Do they have a similar intake as they're literally arresting somebody? And how they're gonna be taking them to a facility, how do they make those decisions? This doesn't get enough.

[Rep. James Gregoire (Vice Chair)]: Might vary from department to department, right? Yeah, but

[Rep. Alice M. Emmons (Chair)]: If a woman is arrested down around Wyndham County, Bennington County, Windsor County, they're taken to the Springfield facility.

[Rep. Troy Headrick (Ranking Member)]: Right. That's where the initial intake is.

[Rep. Alice M. Emmons (Chair)]: That's where the initial intake is.

[Rep. James Gregoire (Vice Chair)]: Chittenden County is different, though?

[Rep. Troy Headrick (Ranking Member)]: Right. If somebody's arrested in Burlington, they're gonna go to the Sierra They're

[Rep. Alice M. Emmons (Chair)]: gonna go to St. August. But I can't remember if they're arrested as a male, if they go to the Chittenden facility, if it's just one night, if they go to the Chittenden facility, or if

[Rep. Conor Casey (Member)]: they go right up

[Rep. James Gregoire (Vice Chair)]: to Saint Augustine. Yeah.

[Rep. Brian Minier (Member)]: I don't think on the tour that we heard that any cells were classified that way. Don't think that we

[Rep. Troy Headrick (Ranking Member)]: heard We were in the booking stage. Yes. We were standing there for a little bit, but they didn't talk about any

[Rep. Brian Minier (Member)]: of this. Precisely. Yeah, we didn't hear that any cells were

[Rep. Troy Headrick (Ranking Member)]: meant for.

[Rep. Alice M. Emmons (Chair)]: Or whatever. Because I know if a woman is arrested around our area in Southern Vermont, they go to the Springfield facility until they go to court. And then from there, they if they're held, then they go up to

[Rep. Troy Headrick (Ranking Member)]: Do they have a segregated booking area?

[Rep. Alice M. Emmons (Chair)]: Yeah. I think so. Yeah. Yeah. Because I used to go to Marble Valley. Years ago they did Marble Valley. I'm not sure what they do now. And I would think up in the Northeast Kingdom, they're going to St. Jay or Newport.

[Rep. Troy Headrick (Ranking Member)]: So that brings me to the question two for folks who identify as trans, non binary, and they have a preference for where they want to be booked. Let's say a person is brought to based on assumptions that are not accurate with regard to how the person identifies, they're brought to St. Albans, and that person feels they should have been brought to CRCF. Is there an interruption point? This doesn't get into that. But can the person say, I'm in the wrong place? And is there an immediate correction by DOC to then transport them to CRCO?

[Rep. Alice M. Emmons (Chair)]: If we continue working on this bill, we'd have to get in law enforcement to see what their protocol is for when they arrest someone. Do they have a protocol for gender identity?

[Rep. James Gregoire (Vice Chair)]: Problem is, I don't think it'll be standard. That's just early. State police might be different from Burke BPD. Yeah.

[Rep. Troy Headrick (Ranking Member)]: And does DOC, and can Darren here plenty, do they have sort Yeah. Of a

[Rep. Alice M. Emmons (Chair)]: Well, it's both. So you get in the state police, but you can also get the police chiefs have an organization. You put in the president of that just to talk about your local at least you get some feedback. I mean, you can all also talk to the criminal justice training council because they're the ones who do the training for all law enforcement to see if that's part of the training. Mhmm. There's also that piece too. We're interested in working on the bill. So there's there's a lot of work being involved in this.

[Hillary Chittenden (Office of Legislative Counsel)]: Moving forward, we're on page six, line seven. So subdivision A said that the DOC needs to ask in a private setting that an inmate specify these questions, this information. B, on line seven through nine on page six, states that an inmate doesn't have to answer and can't be punished for giving no answer or an incomplete answer. So DOC does need to ask the inmate to specify, but DOC can't discipline an inmate for not giving an answer or giving an impartial answer. Subsection C, lines 10 through 12, provides that even after the initial intaking classification process, at any time while in custody, an inmate can inform DOC of the inmate's gender identity. And at that point, kind of loops back to those initial questions in subdivision A where the DOC needs to, again, in a private setting, ask the inmate to specify their gender identity if they identify as transgender, non binary or intersex and the inmate's gender pronoun and honorific. Any questions about that process? I just wanna be clear. Okay. I just wanna be clear that this covers both sentenced and detained folks, which are talking inmate. Inmate, as defined in the statute, covers both. I do not know how DOC's intake process, whether the timing or the nature of it differs for those two groups.

[Rep. Alice M. Emmons (Chair)]: They differ in the intake is intake is usually someone coming in who's been arrested. So that would not be a sentence person, but it could be a person who has been sentenced, is serving a sentence in the community, and then gets arrested

[Hillary Chittenden (Office of Legislative Counsel)]: and comes into the facility. Classification provision that we talked about in section two, this is seven zero one B, requires that classification happen within five days of either sentencing or commitment to a correctional facility pending prosecution on a charge or for sentencing. So the statute suggests that the same process is prompted in either case. But that's something I think would be useful to hear how it functions in practice for DOC. When someone violates their conditions of release

[Rep. Alice M. Emmons (Chair)]: and their DOC sends them back to an incarcerated setting or if the parole board does, or they violate their probation conditions of release and the court sends them to be incarcerated, they're going through booking and they're sentenced. They're already sentenced. So you're dealing with both.

[Hillary Chittenden (Office of Legislative Counsel)]: As drafted, that's my understanding. Moving on to the last part of this new subdivision three, so we're on page six, lines 13 through 16. This generally provides that DOC staff, contractors and volunteers shall not consistently fail to use the gender pronoun and honorific an inmate has specified in all verbal and written communications that involve the use of the inmate's pronoun and honorific. Any other questions about what we have on page six? So the way it's drafted right now is only in the medical care of the first. I think it's not clear because it's in the medical care section, but it says initial intake and classification process. And my understanding is that classification, that word means we're looking more broadly than the medical intake process.

[Rep. Alice M. Emmons (Chair)]: Are folks clear in this?

[Rep. James Gregoire (Vice Chair)]: Yes. Question like you said, so this encompasses somebody who maybe has been incarcerated for a year and over that time identifies as a different gender. The process could start any time. It's not just at the front end of the sentence. I got it.

[Rep. Alice M. Emmons (Chair)]: That's your line 10 through 12. Got it, it.

[Rep. Troy Headrick (Ranking Member)]: Could be 10, yeah.

[Hillary Chittenden (Office of Legislative Counsel)]: Alright. The only other portions of the bill that we haven't discussed yet are the May I ask a good question?

[Rep. Alice M. Emmons (Chair)]: Yeah. Mhmm.

[Rep. Kevin Winter (Member)]: Line 13 through 16. I'm sorry? The page we're on, six. I'm not trying to be facetious. How does the contractor or the volunteers know what the person's preference

[Hillary Chittenden (Office of Legislative Counsel)]: is? So I think the intent in having Dee follow the sections before it is that if DOC is asking each inmate to specify that DOC is recording that information in whatever records they keep about the inmate. The way this is drafted, it does not specify who is looking at those records. There also is not something in the bill enforcing this requirement. So if someone does not know the preferred pronoun and honorific, the bill does not provide for discipline or a penalty. So to your question, the bill does not make clear how DOC staff, contractor or volunteers would know other than the DOC is asking and presumably recording it based on what is above. DOC might be able to speak to how now they record and share that information, but it's not specified in the bill.

[Rep. Troy Headrick (Ranking Member)]: That brings a question for me. Does it then I don't want to get too deep into this before we hear DOC's current policies and procedures. But I am wondering, there is no revenue. There's no expectation for this. Do we and this is a question for the committee at large. If we decide to go further with this, so we don't have to answer this today, do we put something in here that procedures should be in place for DOC employees who regularly or consistently fail.

[Rep. Alice M. Emmons (Chair)]: It says consistently fail. So if it's a one time thing and it's a mistake, it doesn't rise to that level. And the onerous is on the inmate to specify Yes. In all their verbal communication and written communication about the use of their

[Rep. Troy Headrick (Ranking Member)]: I'm just wondering if we if the bill should require DOC to develop procedures for when there is a consistent behavior.

[Rep. James Gregoire (Vice Chair)]: A little contract overlap there, if you're talking employee discipline. But

[Rep. Troy Headrick (Ranking Member)]: it's nice to have it in there, so that if there is an employee matter, the DOC can refer to statute as saying, look, you're not a black statute. That may it would be in and of itself.

[Rep. Alice M. Emmons (Chair)]: I think just having a statute is that where they go from there is up to The US. Well, I know that there are situations right now where there could be a staff, a couple staff folks, and one staff person may make some real derogatory comments about anybody, not sexual in nature, but just say some really bad language towards some inmates, they can be reported to the superintendent and other correctional officer, other staff. Reported. And there have been times that the person has lost their security clearance for that facility until it's reviewed. So that can currently that does currently happen. And it's not in conjunction with this. It can be in conjunction with anything else that might be said in the facility. So I know some situations have come to light and people who have called me about different things. So that's how it would be remedied at this point. That's how it would be. Somebody would complain that they heard this from a fellow staff member or employee through a contractor or volunteer, they should report it to the superintendent.

[Hillary Chittenden (Office of Legislative Counsel)]: I expect that DOC policy, like an employee handbook, would have to state what is a violation and what the potential penalties are before something could happen. But I appreciate that DOC has employee discipline mechanisms in place that

[Rep. Alice M. Emmons (Chair)]: would be used in terms of a process. But I expect that that would have to be spelled out before. You've to be clear, consistently failed. So it's not a one or two tone thing. It consistently occurs when one person is contracted there or one person volunteer or staff, but it's also the onerous is on the inmate to let a person know either verbally or through written communication that this is how they wanna be addressed.

[Rep. Kevin Winter (Member)]: So it goes both ways. And the inmate has some responsibility here too. Do they showing my ignorance again. The inmates have identification on them that says what their name is, what their gender is. So you're expecting I'm

[Rep. Alice M. Emmons (Chair)]: trying to think. They wear pretty much the same clothes? I don't think they do. When you folks went in

[Rep. Troy Headrick (Ranking Member)]: No, they don't.

[Rep. Alice M. Emmons (Chair)]: No, they

[Rep. Troy Headrick (Ranking Member)]: don't. No, they have marketing. They don't sell their home right in. They become known, right? Just like any

[Rep. Alice M. Emmons (Chair)]: And they become like us.

[Rep. Troy Headrick (Ranking Member)]: Right. But if I live in a residence hall, people ultimately get to know me.

[Rep. Alice M. Emmons (Chair)]: Right, they all do, because they're living in separate living units.

[Hillary Chittenden (Office of Legislative Counsel)]: I'm mindful of our time. I will keep moving forward unless there are further questions. I want to make sure we touch on the question about litigation. The last two pieces of the bill on page seven, we have the definitions, and we've already touched on these. So the bill includes the definition for cultural competency that's referenced earlier in the bill, and it includes definitions for gender pronoun and honorific. The effective date, section four, this is page eight, line six through seven. The effective date will be 07/01/2026.

[Rep. Alice M. Emmons (Chair)]: So the definitions for gender pronoun and honorific are brand new? Correct. They're not.

[Hillary Chittenden (Office of Legislative Counsel)]: The statute? Yeah. So Vermont statute defines gender identity. It does not currently define gender pronoun, honorific, transgender, non binary or intersex. Among, I'm sure many other words, does not define. But for purposes of this bill, those are some terms that are not defined in statute.

[Rep. Alice M. Emmons (Chair)]: But gender identity is defined. Correct. And do you know where in statute that be offhand? I wrote it

[Hillary Chittenden (Office of Legislative Counsel)]: down anticipating this could be a question. This is one VSA 144. So the term gender identity means an individual's actual or perceived gender identity or gender related characteristics intrinsically related to an individual's gender or gender identity, regardless of the individual's assigned sex at birth. So yesterday, representative Casey had a question about the interaction with PREA or the overlap with PREA, the Federal Prison Rape Elimination Act, which was a great question. There is some overlap. There is some overlap between the bill and PREA regulations. So, for example, PREA standards require that officials conduct a screening intake to identify whether someone is at risk of being either sexually abused or sexually abusing someone else. And one of the criteria they consider is whether someone is or could be perceived to be transgender or non binary because statistically they could be more at risk of abuse. So there are some areas where the procedures required by PREA regulations could overlap with some parts of the bill. I think to understand that more precisely, a DOC witness would be able to speak to that interaction. But that is the short answer of great question and there is some overlap there. Think my general understanding is that the bill expands upon the PREA standards, but it does not on its face conflict with them. I think I don't know whether in practice there is some way about how DOC is implementing PREA standards that would create any functional tension. But on its face, I do not see where there's any straight out conflict, but it would be useful to hear further from DFC on that.

[Rep. Kevin Winter (Member)]: And for

[Rep. Alice M. Emmons (Chair)]: folks, PREAC is a federal law. Yes. It is prison rape elimination act.

[Hillary Chittenden (Office of Legislative Counsel)]: Correct. And so

[Rep. Alice M. Emmons (Chair)]: I don't know when it was put in place. I mean, we've been dealing with it for

[Hillary Chittenden (Office of Legislative Counsel)]: 2005, I think. I was gonna The standards five years. The law itself mostly calls for other groups to study, collect data, come up with standards. There are regulations that I believe were promulgated in 2012 that say a lot more specific things. And that's something that On federal or state? So regulations on federal PREA, federal regulations. But my understanding is that DOC has a directive that essentially takes those federal regulations and says, this is what we're doing. So I think DOC could speak more specifically to whether any of the steps they take consistent with those standards would create any tensions with the bill. I think it would have to be, to the extent that your question is, are we conflicting with federal law in a problematic way? It's a fairly substantial bar to have that be a real problem. Overlap between state and federal law is only a problem if the federal law explicitly says basically states you can't pass laws in this area, express preemption. Or one of the areas is if it's impossible to comply with both federal law and state law, that could be a challenge. So I think that's the one where very minor things unlikely to create that huge problem. But to the extent that there are concerns about being able to satisfy or be able to comply with both a state law requirement and a PREA regulation that would create that kind of question. Many moving parts involved.

[Rep. Alice M. Emmons (Chair)]: And that's the thing you'll find with corrections. I mean, this is a whole area for all of you. Everything that we deal with in our daily life and our own society happens in a correctional position. We may think, well, they're put in there, they're slapped a number, a name and given a uniform and all these issues go away and it doesn't. All these issues play out in our facilities. Do you have a question? Yeah. Well

[Rep. Conor Casey (Member)]: So this may not be a question for you, Hillary, but based on our understanding of the California legislation that was passed, was there any specific case in California that spawned this kind of legislation? Was there a lawsuit? Was there legal action taken in the state?

[Hillary Chittenden (Office of Legislative Counsel)]: So I'm not aware of a lawsuit that prompted the California law. The piece I was going to come to next is there has been a lawsuit challenged California law. So that was the question yesterday that I wanted to confirm before I responded. There has been a lawsuit challenge in the California law. It did not raise any arguments about conflicts with BREA. That does not mean there are none, but they did not raise any. And California has been implementing its law while the lawsuit is pending.

[Rep. Alice M. Emmons (Chair)]: How did

[Hillary Chittenden (Office of Legislative Counsel)]: the law go into effect? I believe January 2020.

[Rep. Alice M. Emmons (Chair)]: 2020. So it's been six years. And when was the lawsuit filed?

[Hillary Chittenden (Office of Legislative Counsel)]: In 2022, but I am speaking from memory of looking this morning. No. Filed yeah. So the lawsuit was 2021.

[Rep. Alice M. Emmons (Chair)]: So it was right after basically the next year.

[Hillary Chittenden (Office of Legislative Counsel)]: So the California lawsuit was filed in a federal district court in California. And it is for, now six, a group of cisgender female inmates who are seeking to prevent the law from being implemented. They've made a few arguments under the federal constitution. So they're arguing oversimplifying, but generally their argument is that the law enables a higher risk of sexual assault or other harms because folks with male genitalia could be placed with women. They make a number of arguments related to that. I think if the committee would like to hear more about the details of that, I can provide some further information. But I think the main takeaway from I reviewed the briefs in that case, a court has not yet ruled on the merits. So they've ruled on some of the important but technical legal requirements around challenging a law and trying to prevent it from being enforced. And there are some real challenges with trying to prevent a law like this from being enforced from that perspective. I think there is a strong basis for defending the law against those kinds of challenges. I'm not a court. I can't absolutely predict what would happen. But I think there is a strong basis for defending against those kinds of arguments. This is also a very quickly shifting legal landscape. So the Supreme Court just heard argument last week in a case challenging this was a West Virginia and Idaho laws prohibiting transgender girls and women from playing on girls and women's sports teams. And the way that the US Supreme Court is thinking about these issues would change the assessment of the strength of the defense against challenges to this kind of law. So I can get much more legally technical about kind of the nature of the challenge or the arguments. I'm not sure how helpful that is at this moment, but I think the committee should be aware that there are groups that would certainly be interested in litigating these kinds of challenges. I try not to overstate things. There would be certainly potential for litigation. My understanding is that's not entirely uncommon for laws that get passed. And I think if the committee chooses to move forward, either I can provide some further detail on these kinds of issues. I know that Senate judiciary also heard from a law professor who specialized in immigration and in federalism in considering some of their thorny constitutional questions related to some of the immigration bills. So those are options for the committee to gain further information or ask questions. It's a very interesting area of the law. A lot is changing. But as I mentioned, I think the takeaways are litigation is certainly quite likely. But I think there's a strong basis under current law for defending this kind of law.

[Rep. Alice M. Emmons (Chair)]: Do have more?

[Rep. Kevin Winter (Member)]: Yeah, I

[Rep. Troy Headrick (Ranking Member)]: just had a follow-up real quick. So I

[Rep. Conor Casey (Member)]: guess maybe to change the question a little bit When you talked about how preo requires the screening for people that are at risk, I did not realize that at risk was a qualifying criteria to them when they do the screening process. Does this legislation help address, I'm assuming what they give states broad authority to enforce PREA, even though I understand that they have to follow the federal law, but I'm assuming they allow them to kind of choose what tools they want to enforce at the state levels. So

[Hillary Chittenden (Office of Legislative Counsel)]: the federal regulations apply pretty directly to states. I am not concerned for you. I have regulations. They're pretty detailed. I did see where they said a state can use discretion in implementing these. It doesn't mean it's not there. I'm happy to look for it. But in thinking about the PREA requirements and the requirements of the bill, the PREA requirements that mention transgender or non binary folks, none of those requirements directly conflict with what the bill is talking about. I think DOC will have a better idea of whether like in there are a lot of regulations in implementing the broad range of those regulations. There's something about how they do that that procedurally would create a tension. That doesn't mean that's an irresolvable tension, but it's something that DOC would be able to identify if there is something beyond the plain text comparison. Does that help answer your question? I think we can,

[Rep. Conor Casey (Member)]: I mean, we'll find some folks to come in to, I guess, talk about that a little bit more, because I guess what I'm trying to get to is trying to prevent a lawsuit from actually happening because we violate Korea because we don't fully enforce it, and we allow the situation to take place with the one of the facilities, and we're of course losing money from that, which I know we just talked about the inverse situation of getting sued because we put this policy in place, that doesn't concern me as much as it would be if the state's actually liable for something? We allow an inmate situation to happen. This clarifies that and puts in a statute of concrete policy around how these situations will be handled.

[Rep. Alice M. Emmons (Chair)]: Tonight. We were getting a walk through of the bill. I think you may have missed the first part of it. We started yesterday to do she's our legal staff, so that's the process we take. The committee showed some interest to at least have the legal staff walk us through the bill to see what the bill says. And we didn't complete that yesterday, so we're finishing it up today. And then the next question is, where do we go from here for that? I know Troy recommended there was a person who was incarcerated that would like to share their story with us.

[Rep. Troy Headrick (Ranking Member)]: Yeah, and I think she, regardless of her attachment to this bill and her motivation for me to introduce this bill, she's a trans identified woman who lived in our out of state facilities beyond Mississippi for a decade and a half.

[Rep. Alice M. Emmons (Chair)]: Beyond Mississippi? She's She's

[Rep. Troy Headrick (Ranking Member)]: lived in more than one.

[Rep. Alice M. Emmons (Chair)]: That's okay.

[Rep. Troy Headrick (Ranking Member)]: Yeah. And when she returned for her final year prior to relief, she lived at CRCF. So just that alone, I think, would give us some really good we haven't talked to many folks who have been incarcerated. We certainly haven't talked to any I don't think any folks who've been incarcerated out of state. We definitely have not talked to folks who have been incarcerated who identify as trans. So that in and of itself, regardless of whether or not this bill moves, I think, would be worthwhile testimony for this committee to hear.

[Rep. Alice M. Emmons (Chair)]: And we do look at corrections policy. And we're responsible for folks who are under our state custody. And she was under our state custody.

[Rep. Troy Headrick (Ranking Member)]: For a while.

[Rep. Alice M. Emmons (Chair)]: And we have some responsibility to that. Might be worth bringing her in and get a better understanding of what's actually happening. The bad corrections comes from a formerly incarcerated person.

[Rep. Brian Minier (Member)]: I'm not clearly remembering what I've heard in official testimony and what I've heard sort of in sidebars. Have we had official testimony from DOC that they're dealing with this stuff already?

[Rep. Alice M. Emmons (Chair)]: No. What we had was Troy to give us a

[Rep. Brian Minier (Member)]: I don't mean in particular with this bill. I mean, general. Feel like

[Rep. Alice M. Emmons (Chair)]: You've asked I've heard

[Rep. Brian Minier (Member)]: that in this building. Don't know if

[Rep. Alice M. Emmons (Chair)]: We've asked some questions, rather through testimony of DOC, where do they house transgender folks, and they really work with their identity, how the person identifies. They really what we've heard, they either put them in the women's facility or the male facility. And I forgot. We've asked the numbers of trans

[Rep. Troy Headrick (Ranking Member)]: We just asked They said 15. There was somebody from who they said Yes. Yeah. I thought it would Didn't it get to 22? Wasn't it higher? It was up that high,

[Rep. Conor Casey (Member)]: but he's come back down.

[Rep. Troy Headrick (Ranking Member)]: The other thing and I don't want to tell Connie's story for her. She will tell you what it was like. She's worried. She's worried that our policies, just in medical care alone, is not sufficient for trans identified people, that we're not providing quality care for folks who identify as trans, specifically. I stated this when I introduced the bill. It was really hard for me to introduce a bill that suggests maybe not everybody who identifies as transgender are doing so with honesty and integrity and with the intent. It's getting at some of the lawsuit that California is facing right now from cisgendered women who are worried about this. And Kalani will support those concerns. I don't want to speak for her. That's precisely why I think she'd be a remarkable witness. I think we're going to hear things that we haven't heard

[Rep. Conor Casey (Member)]: in this room. It will

[Rep. Alice M. Emmons (Chair)]: make people uncomfortable.

[Rep. Troy Headrick (Ranking Member)]: It will.

[Rep. Alice M. Emmons (Chair)]: But that is part of our role as being a legislator, is to balance all this. Kevin?

[Rep. Kevin Winter (Member)]: I feel for this person. And I don't mind being uncomfortable. In fact, I challenge it. But I gotta ask, page three of eight, lines seven through nine, the question is, any lawful search, is it the same for a male and a female? So

[Hillary Chittenden (Office of Legislative Counsel)]: an example I gave yesterday that DOC could provide a more fulsome answer on is that my understanding is that search policies often reference the gender of the person doing the search in relation to the person being searched or the gender of the person observing the search in relation to the person being searched. So the search policy that might apply, it would matter how the person being searched identified in determining the gender of the person who, according to the policy, could search them or observe a search. There are some requirements in PREA related to cross gender searches. But again, someone who regularly works with implementing Prio will be a better person to give you good answers to those.

[Rep. Kevin Winter (Member)]: Okay. So what I heard you say is there is a difference between a lawful search for a male versus a female.

[Rep. James Gregoire (Vice Chair)]: Hillary's not really the right person to ask this.

[Rep. Alice M. Emmons (Chair)]: What Hillary just said is if there is a woman to be searched, it needs to be done by a woman correctional officer. If there is not a woman correctional officer available, then there has to be a woman observing. If there is a male inmate fender being searched, it's to be done by a male correctional officer. If it is done by a female correctional officer, there needs to be a male supervising. That's what I understood.

[Hillary Chittenden (Office of Legislative Counsel)]: That's a more specific understanding of the policy than I have. I just know that the way they are defined references the gender of the person searched, doing the search, observing the search. I think DOC would be able to explain exactly how their policy works, which may provide a better answer to the

[Rep. Kevin Winter (Member)]: But your description confirms my understanding. It's different. If it's a female, you have to have different people observing and doing the search. If it's a male, you have different people. You get the same search.

[Rep. Alice M. Emmons (Chair)]: They get the same type of search, and it's in their It's policy people, though. It's in their policy and directors. Their anatomy may be different, so they're putting their finger in different places. I'm gonna be blunt like that. And that's fine.

[Rep. Kevin Winter (Member)]: And I'm gonna be

[Rep. Alice M. Emmons (Chair)]: It's the gender of who is doing the search.

[Rep. Kevin Winter (Member)]: I hear it.

[Rep. Alice M. Emmons (Chair)]: The gender of the person who is being searched, and that's under the policy and directives of corrections right now. They have this laid So

[Rep. Kevin Winter (Member)]: and I understand what you're saying. The point that I'm trying to make here is it states if the inmate's gender identity cannot be determined. So, we're stating right up front that we may not be able to identify the true gender of the person. Sharpie can In that we're

[Rep. Alice M. Emmons (Chair)]: a choppy

[Rep. Kevin Winter (Member)]: held to a standard, but we may not be able to determine what their gender is. It's

[Rep. Alice M. Emmons (Chair)]: But understanding

[Hillary Chittenden (Office of Legislative Counsel)]: of B and C, something we talked about yesterday, and maybe this is something to be clarified in language. But my understanding of b and c together is b says that an inmate can identify which search policy they prefer. And C essentially says, if the inmate does not indicate a preference or has not otherwise specified their gender identity, then DOC would apply the search policy consistent with the gender designation of the facility where the person is housed. So there's a chance for the inmate to indicate a preference and their gender identity, but DOC has a default if that doesn't happen, which is based on the gender designation of the facility.

[Rep. Alice M. Emmons (Chair)]: So again, it puts the on the inmate to be clear how they identify. And then if they're not, and then there's some, and I

[Hillary Chittenden (Office of Legislative Counsel)]: don't know if this would be legal protection to DOC. It's done in accordance with the gender designation of the correctional facility, and it's really determined on their policy and directives in that facility for how they do the searches for that particular agenda. Yes. You legal cover for DOC, Maybe. I don't know about calling it legal cover or not. DOC does have policies and directives in place for classification and placement and for search policies. And I think the statute is directing DOC which one to use depending on what the inmate says they prefer or if they do not indicate a preference.

[Rep. Alice M. Emmons (Chair)]: Brian, do have any answer?

[Rep. Brian Minier (Member)]: Yeah, just quickly. I think bills don't ever come out the same as they are on the page when we're first looking at them. So I expect this to change somewhat. I don't know how. We might as well, in my opinion, find out what DOC is doing about it now because they're doing something. We might as well find out from this person who has a personal story how it went for them. I don't see any problem with either one of those things, which would allow us to move forward, not defining exactly what's going on here.

[Rep. Troy Headrick (Ranking Member)]: I second here, Brian. I think we need to keep digging into this, and I really look forward to hearing from Tony? Tony. Hey, Brian. That sounds like we need to all hear that.

[Rep. Alice M. Emmons (Chair)]: So, Tay, why don't Troy, you have her contact info.

[Rep. Troy Headrick (Ranking Member)]: I've already introduced her to to Tate.

[Rep. Alice M. Emmons (Chair)]: So why don't we try to schedule how long do you think it would be? An hour?

[Rep. Troy Headrick (Ranking Member)]: I I would anticipate rich discussion.

[Rep. Alice M. Emmons (Chair)]: Just trying to

[Rep. Troy Headrick (Ranking Member)]: figure out for this. Went to two hours in my head, but that might feel And we may want to contain. We may what? Want to contain.

[Rep. Alice M. Emmons (Chair)]: We may want to contain, yeah. Because they're bringing in a lot of people in the room.

[Rep. Conor Casey (Member)]: You're right. We

[Rep. Alice M. Emmons (Chair)]: bring in a lot of people in the room.

[Rep. Troy Headrick (Ranking Member)]: Maybe an hour and a half.

[Rep. Alice M. Emmons (Chair)]: Maybe an hour and a half. And DOC should be in the room at the same time.

[Rep. Conor Casey (Member)]: Yes.

[Rep. Alice M. Emmons (Chair)]: For that, any thoughts on who else should be in the room besides Hillary and the DOC?

[Rep. Brian Minier (Member)]: Oh, we've talked about police departments. I I don't know how we're

[Rep. Alice M. Emmons (Chair)]: So listen to hear that particular testimony.

[Rep. Troy Headrick (Ranking Member)]: Who actually does the searches from DOC? Well, they can always

[Rep. Alice M. Emmons (Chair)]: They can come in for testifying. Who should be in the room that we want to hear their testimony? Think DOC needs to be in the room to hear her testimony.

[Rep. Troy Headrick (Ranking Member)]: I'm just thinking advocacy groups right now, like ACLU or anything like that.

[Rep. Alice M. Emmons (Chair)]: They'll be here because we'll see

[Rep. Conor Casey (Member)]: it on

[Rep. Alice M. Emmons (Chair)]: the schedule.

[Rep. Troy Headrick (Ranking Member)]: I don't know that there's anybody.

[Rep. Alice M. Emmons (Chair)]: I just want to make sure. And then go from there.

[Rep. Troy Headrick (Ranking Member)]: You can have whoever you want. I just want more than three square feet like earlier.

[Rep. Alice M. Emmons (Chair)]: Next time they'll be sitting in the lap.

[Rep. Troy Headrick (Ranking Member)]: I about this

[Hillary Chittenden (Office of Legislative Counsel)]: one. I'm happy to clarify as we move forward anything.

[Rep. Alice M. Emmons (Chair)]: Yeah. And if we do work on this and then we'll work on H-thirty two, which is the MOUD, depending on what I get from Commissioner MURAC, because he's going to send me some information that he's been working for the 5th Floor on this whole initiative, augmenting the MOUD program. He's gonna send me that information, and I'm gonna work with Katie to look at that information and see what we might need to update for statute, and it'll be age 32 as the vehicle because it's intertwined with MOUV.

[Hillary Chittenden (Office of Legislative Counsel)]: And I will keep in communication with Katie. Yes. That's important.

[Rep. Alice M. Emmons (Chair)]: Because it deals with that medical care section. And she's reconfigured all that to be more clear in terms of what is required in DSA. Thank you, Hillary.

[Rep. Troy Headrick (Ranking Member)]: Thanks, Good night, everybody.

[Rep. Alice M. Emmons (Chair)]: Thank you. So it's Thursday. Tomorrow's Friday. Where did the week go? So we're back here tomorrow after the floor, and we are working a little bit into the afternoon. We're gonna be hearing We're gonna be doing something most simple in the afternoon with the roadside historic markers. Is that all Well, Laura's doing the whole thing, isn't she?

[Rep. Troy Headrick (Ranking Member)]: How much testimony is there on roadside historic markers?

[Rep. Alice M. Emmons (Chair)]: That needs to be

[Rep. Troy Headrick (Ranking Member)]: It's

[Rep. Alice M. Emmons (Chair)]: more than roadside Markers, it's all of section four.

[Rep. Troy Headrick (Ranking Member)]: I have to sit through those things 10 times a year.

[Rep. Alice M. Emmons (Chair)]: So we're here after the floor, I don't think the floor is going to go long. Think if today's gonna

[Rep. Kevin Winter (Member)]: be a roll call tomorrow from what I

[Rep. Troy Headrick (Ranking Member)]: have to say. Yeah. I need to do things.

[Rep. James Gregoire (Vice Chair)]: Get done.

[Rep. Alice M. Emmons (Chair)]: On the floor

[Rep. Troy Headrick (Ranking Member)]: So that's an extra

[Rep. Conor Casey (Member)]: at nineteen

[Rep. Alice M. Emmons (Chair)]: thirty. So it might be done by 10:30. We might have to move, John, but I don't know. Because council's state governance is really important. They're still scheduled. Right? Alan?

[Rep. Troy Headrick (Ranking Member)]: Correct.

[Rep. Alice M. Emmons (Chair)]: And Alan will be here in person, maybe?

[Rep. Brian Minier (Member)]: He said she was going

[Rep. Conor Casey (Member)]: to try to get in person.

[Rep. Alice M. Emmons (Chair)]: Gabe's always on Zoom because he lives out of state. But this is gonna talk about the pre trial supervision program. The DOC worked with council state governments this past summer and fall to do an analysis of this program when it was rolled out, I think in Essex and Orleans County. And then it got moved to Chittenden County with the Court Accountability Program. And they have some recommendations in terms of some changes to the statute around the pretrial supervision program to make it more effective. We need to understand that the governor has proposed an expansion in his budget address on Tuesday. He proposed an expansion of the pretrial supervision. So we need to understand, we've gone through the statute in terms of the pretrial supervision. I'd like to get a real copy of the statute so we can see exactly how it's laid out, so people can see the steps to it And I have a better understanding of what David's gonna present tomorrow. And there is a report that they have submitted. The pretrial supervision report. So that would be good to have as well for that. That's here. Anything else? No. It's done. We're done. Thank you, folks. Mary, don't