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I have been racking my brain trying to figure this out.

When a non-binary character has to be imprisoned, how is the correctional facility determined since most if not all are binary?

My particular interest is on intersex, genderfluid, and agender with genderfluid being able to fluctuate between different gender expressions.

  • I'm not sure whether this is a question about politics, per se, but I know that most jails are unisex (i.e. hold prisoners of all genders) and I imagine they'd just be sent to one of those. – F1Krazy Nov 24 '19 at 19:27
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    Are we talking about a fictional character? In any case, the prison system through much of the world is not known for being accommodating of gender identities outside the two most common. In a situation where they weren't send to a unisex prison, I imagine they'd end up in the facility corresponding to their sex, not their gender. – Obie 2.0 Nov 24 '19 at 19:32
  • This is more of a question on application of law than the political processes which are about law. I will migrate this question to Law Stack Exchange. Please add a relevant country tag as quickly as possible, because this is likely handled differently in different parts of the world. – Philipp Nov 24 '19 at 19:32
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    You need to specifiy what jurisdiction this is under. – user6726 Nov 24 '19 at 19:40
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    @Obie2.0 What sex would be an Intersex person be classified as? I ask this in light of Intersex people having their sex marked as ‘X’ on government documents. I had a discussion with my wife after watching Southpark “Board Girls” and to be honest, we got nowhere. – A.M.M Nov 24 '19 at 19:48
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In the US, the question of gender and facility-assignment depends on whose prison it is – federal, vs. a specific state. There may be a specific policy adopted by a particular prison system, but there is no specific statute that generally requires segregation of prisoners based on gender. Policies will exist which protect a prisoner's 8th amendment right to be free from cruel and unusual punishment: subjecting a person to repeated violence would be a kind of cruel and unusual punishment.

At the federal level, the Prison Rape Elimination Act was designed to eliminate rape in prisons (which was already illegal). The act mandates a zero-tolerance policy, and enables studies of the problem – it does not further distinguish gender categories and/or parameters of sexual orientation. Specific policies are highly variable between states and the federal system. In theory, a state could mandate separate prisons according to birth gender, current gender and sexual preference (or, wings within a facility). I don't know of any system that specially segregates bisexual inmates from mono-sexual ones (etc.). There federal policy on transgender prisoners is explained here.

The main policy of relevance is that prisoners are assigned based on their biological sex. Prior policy applied to Transgender individuals, defined as

the state of one’s gender identity not matching one’s biological sex. For the purposes of this policy, a transgender inmate is one who has met with a Bureau of Prisonspsychologist and signed the form indicating consent to be identified within the agency as transgender. This step allows for accommodations to be considered

That version did not say what "biological sex" is. Under current policy, the facility shall

decid[e] the facility assignment for a transgender or intersex inmate, the TEC [Transgender Executive Council] should make the following assessments on a case-by-case basis:

followed by, first: use biological sex as the initial determination for designation. Nothing addresses the former Intersex category, and I can find no explicit statements about what rules they use. This article makes some recommendations about this matter (suggesting making an official rule), but that's a desideratum and not the law, and it does not suggest that there is a known policy pursued by the purported TEC (whose actual existence is very hard to verify).

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  • Thank you for this. Now the question would shift on to the interpretation of biological sex. By this is I assume they mean chromosomal (genetic) sex and or gonadal sex. We know that gonadal sex can be altered through surgery leaving chromosomal sex (XX and XY) to be used for identification. How do you biologically identify an Intersex person? – A.M.M Nov 24 '19 at 20:47
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    @A.M.M XX and XY aren't the only chromosomal sexes; some non-XX and XY people are under the intersex umbrella. More typically ID as intersex is an anatomical determination, though. Most people haven't checked their chromosomes. – Erin Anne Nov 25 '19 at 4:36
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    I think your use of bisexual there could be misleading. Typically it refers to someone who is attracted to both men and women, not to someone who is intersex. – Obie 2.0 Nov 25 '19 at 6:36
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    @Obie2.0 I think he was saying that they don't separate bisexual inmates from heterosexual and homosexual inmates, even if they might separate those two groups to minimize the amount of prison rape? – nick012000 Nov 25 '19 at 12:40
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    @ErinAnne. I am well aware of variations in X and Y. The issue is when the term "biological sex" is used to determine a person's sex without explicitly saying what qualifies in each classification. My argument is when it comes to Intersex, identification using biological sex does not cut it. – A.M.M Nov 25 '19 at 14:32

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