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The Transgender Prisoners Debate

Posted in: Comment
By Craig Young - 10th July 2013

Given a hiatus in news items related to street sex workers and the machinations of Asenati Lole-Taylor and the Auckland Council, this item will focus predominantly on the question of transsexual prisoners in gender-appropriate prisons.

Transgender lawyer Kelly Ellis and her allies at the University of Auckland's pro bono Equal Justice Project have put together an impressive, if horrifying, dossier on the abuse of transsexual prisoners human rights in the context of gender-inappropriate imprisonment.

One such area of concern is continued access to hormonal treatment while in prison, given that gender dysphoria is a recognised clinical criteria listed within the American Psychiatric Association's Diagnostic and Statistical Manual and other such volumes. At present, according to r M.03.05.02 (h) of the Department of Corrections Prison Service Operating Manual, a distinction is made between "commencing" or "maintaining" access to hormonal treatment for transitioning. Prisoners are not permitted to start transitioning while still imprisoned, but are able to maintain access to ongoing hormonal treatment, although they have to pay for it themselves.

The Equal Justice Project considered this an unsatisfactory situation. It contravenes the enabling legislation in this context, the Corrections Act 2004, which specifically states that a prisoner should receive medical treatment in this setting when 'reasonably necessary," and as noted above, gender dysphoria is a recognised medical condition with clinical criteria. The EJP therefore suggests funding ongoing transitional hormone treatment in the case of prisoners with ongoing needs, while prisoners could also commence treatment if they can pay for it on their own cognisance.

As well as hormone treatment, prisoner classification is also a major problem. At present, the Corrections Regulations 2005 (Regulation 190) leads to potentially life-endangering problems for transgender prisoners, as it only allows post-operative transsexual prisoners access to gender-appropriate correctional facilities, instead of recognising transitioning as a continuous process. This is patently discriminatory, given the waiting period for the achievement of full reassignment surgery can be as long as twenty years. This dangerous and foolhardy obstacle means that most transitioning transsexual prisoners cannot be placed in gender-appropriate correctional facilities. This causes severe risks for transsexual women in the process of transitioning, given already documented instances of rape and sexual assault from cismale prisoners within gender-inappropriate prisons.

Is this a violation of the Bill of Rights Act? According to the Equal Justice Project, it is indeed so. When the Clark administration handed down its Crown Law Office opinion, which 'read' gender identity into gender insofar as the Human Rights Act and Bill of Rights were concerned, it meant that transphobic discrimination was therefore illegal. And in this context, refusal to allow transitioning transsexual prisoners access to hormonal treatment and safe, gender-appropriate correctional facilities, therefore does constitute a violation of the relevant legislation. The report also notes that New Zealand is a signatory to the International Covenant on Civil and Political Rights, which also expressly forbids discrimination on the basis of gender identity.

How do other jurisdictions meet their human rights obligations and statutory requirements insofar as this issue is concerned?

In Australia, all federal, state and territorial jurisdictions now have gender identity discrimination directly included within their relevant antidiscrimination legislation. In August 2008, Queensland Correctional Services implemented a new transgender prisoner management policy as a result. Jenny Samiec analysed the relevant documents for the University of Queensland Law Review. She noted that recognised transitioning consists of hormone treatment, gender-appropriate clothing and behaviour and reassignment surgery, and that reassignment surgery is recognised as being the "key" point at which 'decisive' reassignment occurs in the context of official documents. As with New Zealand, this raises the question of transitioning individuals who are undergoing hormone treatment and require gender-appropriate correctional facilities within which to commence and undergo safe transitioning. In Queensland, this is a decision of senior prison management and transitioning is ignored as a continuous process for the purposes of policy. As with New Zealand, this therefore leads to risk of sexual assault from cismale prisoners, and as in New Zealand, such transphobic sexual violation has occurred. Semiec recommends separate ablutionary facilities, sole occupant cells and access to ongoing hormonal treatment within an appropriate gendered facility. In the case of transitioning transsexual male prisoners, it may also be necessary to imprison them within the same setting, given the retention of some female genital characteristics and the risk involved.

In the context of hormone treatment, there are analogous problems. In the past, senior prison management sometimes refused to allow transitioning prisoners access to medically necessary hormonal treatment needs, leading to a Queensland post-release case where one transsexual man successfully sued Queensland Correctional Services in 2003. Unfortunately, Australia's Medicare public health insurance system does not currently fund reassignment surgery (or did not do so in 2008, when this paper was written). Given the small number of transsexual prisoners, such adjustments to correctional policy would be relatively easy to accommodate transitioning. Semeic's paper also refers to the United Nations Standards on the Minimum Treatment of Prisoners, which notes that there is to be no additional onerous punishment of prisoners in this context. Exposing prisoners to future medical concerns, and the risk of contingent sexual violation from gender-inappropriate prison facilities would certainly be considered onerous in this context. Richard Edney has written a similar article for Deakin University Law Review on the same subject.

In Canada, PASAN (Prison HIV?AIDS Support Action Network), a national prisoners rights organisation, took the Correctional Services of Canada to task for its failure to insure access to ongoing hormonal treatment, safe gender appropriate imprisonment facilities for transitioning inmates before the advent of reassignment surgery, and the consequent risk of prison rape from cismale inmates in gender-inappropriate facilities. As with New Zealand, no provision is made for prisoners who want to begin transitioning while imprisoned. One "solution" is segregation from other offenders, but given that this is often alongside prisoners who are evaluated to provide an escalated risk of harm to other inmates, or who have severe mental health problems in some instances, this also places transitioning inmates at risk. The cited article notes the case of Synthia Kavanaugh, a transitioning transsexual prisoner who won an antidiscrimination case against the Correctional Services of Canada and was subsequently imprisoned in a gender-appropriate prison after undergoing reassignment surgery. One wonders what the passage of C-279, Canada's new federal transsexual-inclusive antidiscrimination law, will have on this policy.

In the United States, similar concerns are ongoing. Some useful resources are cited below.

Reportedly, New South Wales and the United Kingdom have also amended their corrections policy to facilitate safe management of transsexual prisoners and recognised the specific needs of transitioning prisoners, instead of arbitrary rules based on the act of reassignment surgery which benefits few such inmates and may endanger them in the context of sexual assault and violation. One hopes Corrections Minister Anne Tolley, Attorney-General Chris Finlayson and Justice Minister Judith Collins take serious note of concerns from overseas and finally act to make the necessary amendment to transsexual prisoner management and safety policies that are so urgently needed.

Equal Justice Project: Transgender Prisoners:
PASAN: "Transgender Prisoners in Canada":‎
Richard Edney"To keep me safe from harm?" Deakin University Law Review:‎
National Centre for Lesbian Rights: Rights of Transgender Prisoners:
2011: New York Civil Liberties Union and National Centre for Lesbian Rights:
Cruel and Unusual: (US Documentary on Transgender Prisoners):
Jenny Semiec: "Transgender Prisoners: A Critical Analysis of Queensland Correctional Services New Procedure"University of Queensland Law Review:
Craig Young - 10th July 2013

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