A transgendered person is physically of one gender but identifies as the opposite gender. For example, a person who identifies as a woman may be physically male and a person who identifies as a man may be physically female.
The difficulty is then in deciding which prison a transgendered person should be sent to.
In this submission, we outline at a very high level, the problems specific to transgendered people in prison. We then discuss the importance of the two key issues of fair and humane treatment, and of reducing re-offending, before making specific suggestions on solutions to the problems identified. Finally, issues around implementation are addressed, and policies from other jurisdictions are included in the appendices.
We would also like to offer our services in working with the Department of Corrections in developing policies for the treatment of transgendered people.
If a transgendered person is sent to the wrong prison then the following problems may arise:
The foreword to Better Corrections Law in New Zealand states the following:
"The key themes include . . . offenders will be treated fairly and humanely and will have sentence management plans providing for rehabilitation and reintegration. Corrections business is about administering sentences and working with offenders to reduce the likelihood that they will re-offend. . . . It is for good reason that reducing re-offending must clearly be the priority for the corrections system."
From this statement we have taken two issues which are particularly relevant for transgendered people:
This entails:
Anecdotal evidence suggests that the reason that some transgendered people lash out against society is due to their gender issues. This means that addressing the gender issues will greatly aid rehabilitation and conversely, not addressing the gender issues will prevent rehabilitation.
Therefore, hormone treatment, counselling must be continued, or commenced if requested. Surgery (if paid for by the inmate) must be made available, if practicable.
Preventing transgendered people from presenting themselves as their gender of identity can make some lash out in reaction. This is not constructive for either the transgendered person themselves or for those around them, and can inhibit positive changes in behaviour.
Pre Sentence: The Judiciary should be made aware that the convicted person is transgendered and the likely psychological impact of imprisonment and the physical and sexual abuse that is likely. Earnest consideration should be given to non custodial sentences giving due regard to public safety.
Segregation in Transit: All Transgendered prisoners (remand or sentenced) should be segregated from other prisoners during transit between police custody, courts and other correctional facilities, for their own safety.
Prisons/Gender
Dignity and Respect: Transgendered persons should have the same right to dignity and respect as others, but given the difficulties of having a body that is different from the gender of identity, there needs to be recognition that this will require more effort on the part of the prison service for transgendered people than for others.
Medical Care: Transgendered prisoners should have the same rights to medical and psychological/psychiatric care and wellbeing as other prisoners at a standard comparable to these services in the community.
Hormone Therapy: Persons currently undergoing hormone therapy should continue that therapy and be supplied with the necessary medication. Transgendered persons not yet on hormone therapy should, on request, be considered and subject to the accepted criteria in the community, be supplied with the medication to commence hormone therapy.
Persons receiving hormone therapy should be subject to the normal and ongoing monitoring and updating of that therapy through access to or in consultation with their GP, Endocrinologist, psychiatrist, psychologist and counsellor. Should this not be practical, substitution may be made of others of equal or superior qualification merit and sympathy to the subject's case.
Surgery: Access to surgery as part of gender transition should be treated favorably as it will improve the transgendered persons chances of successful rehabilitation.
Clothing; All transgendered prisoners should have the right to wear clothing appropriate to the gender of identity. Prison issue clothing should be appropriate to the gender of identity.
Names: All transgendered prisoners should be addressed by their preferred name and in reference to them pronouns used appropriate to the gender of identity.
Body/Strip Searches: Where necessary these should be carried out with due regard to the individual's privacy and dignity. Supervising officers (2) should be of the gender of identity unless requested otherwise.
Prostheses: Transgendered persons should have access to prostheses which may aid them in their wellbeing in the gender of identity eg. breast bindings for Female to Male transgendered people and breast forms for Male to Female transgendered people.
Condoms: We have at least one report of a pre op transsexual being coerced into sexual activity during a sentence in a prison of birth assigned sex. Their request for condoms was rejected which, conceivably, could have resulted in a death sentence, from AIDS or hepatitis. Therefore, under such circumstances, condoms should be made available.
Complaints/Ombudsman Access: A secure and unbiased complaints procedure is required which is not subject to interference by rank and file prison staff. One possibility is a sealed box for the deposit of complaints/requests which can not be opened or the contents accessed by rank and file staff.
Corrections Department Policy on transgendered persons: This should be issued to all transgendered prisoners on arrival at the first correctional facility in the chain of placement. Copies of the policy on transgendered persons should be displayed in their entirety on all correctional staff notice boards and all inmate/offender notice boards ( to take account of community service etc.)
Training of prison staff: Training of prison staff is crucial. We know that overseas these policies have failed because the staff do not understand the policies and are not prepared to implement them.
Education is not simply a matter of teaching staff what the rules are, but giving them sensitivity to issues facing transgendered people, and ensuring that they treat transgendered prisoners with dignity and respect.
This education must be at all levels of the prison service, including the staff in the facilities, case managers and those in positions of power who make decisions that affect transgendered prisoners.