Our SUFW spokeswomen met recently with the Corrections Policy Team who are working on the following issue as apart of a wider consultation: The discussion document can be downloaded here but we were concerned with item 2.
2. Ensuring people are assigned to male and female prisons by considering a range of factors
The following two options were up for discussion:
Option 1: revoke the birth certificate rule and add birth certificates as one of the several factors that may be considered if it is presented during placement decisions (regulatory option) Under this option, a birth certificate may be considered alongside a range of other factors, such as the person’s gender and the wellbeing and safety of the applicant and others in prison. This would mark a change from the status quo, which requires a person to be placed according to the sex on their birth certificate, if it is presented.26 Under this approach, a person would not be disadvantaged if they did not present their birth certificate. This is because other information, such as gender, can be considered in the prison placement decision. This option would retain existing regulatory provisions that exclude someone accused or convicted of a serious sexual offence from applying for a review of their determined sex.
Option 2: status quo – keep the birth certificate rule in place and have an operational response to manage people when required (non-regulatory option) Under this option, the birth certificate rule would still apply. If there was a possibility of harm to or from other people in the prison due to the placement, Corrections would manage this with an operational response. For example, it may be necessary for Corrections to place someone on directed or protective segregation.
We gave the following feedback:
Option 1, which does not rely on the birth certificate does have some merit but it is our belief that the only factor that should be considered when housing a prisoner is their biological sex.
We do not support Option 2, it seems to rely on the birth certificate by default and it may have to be proven that there is a problem before a particular transgender prisoner is removed from the opposite sex prison accommodation and will obviously result in transgender people having to be housed in segregation due to security levels etc
It is the status quo, but self-ID will mean that any person can change their sex marker on the birth certificate, potentially opening this pathway up to any male who is happy to sign a statutory declaration. This could be done by a prisoner after sentencing who, when faced with a long stay, might imagine that a women’s prison would provide a safer and more enjoyable experience.
We stated our preferred option as follows:
In the case of a biological woman who identifies as a woman, she should be housed in the women’s accommodation with no biological males.
In the case of a biological man who identifies as a woman, he should be housed in the men’s accommodation with no biological females.
Where a person's biological sex does not match their gender identity they should either be housed in accommodation that matches their biological sex or in accommodation specifically for transgender prisoners of their own sex, they should have some choice in the matter.
In our discussion with Corrections we accepted that this is a difficult solution to implement due to the other sentencing factors that must be taken into account and the small numbers of transgender inmates. We did reiterate that the difficulty of the placement of a male inmate should not be the concern of a female inmate.
We made the following points during our meeting:
Transgender women may be considered “male” to female inmates, “the women who are experiencing them feel that they are men, and that is real”.
Gender reassignment surgery does not change one’s biological sex.
Safety of female prisoners needs to be considered during placement decision
Women’s mental and emotional wellbeing may be negatively affected if transgender women are in the unit with them. This may impact their ability to heal and rehabilitate.
The group discussed that women have a right to a space that is free from men.
Overall, there was a general agreement with the statement that “it continues to be important to consider the safety and wellbeing of everyone in a women’s prison”.
Corrections discussed that prison operational practice is the key to ensuring safety of everyone in prison.
A women’s pathway into prison typically differs to that of men and there was a question asked as to how or whether the pathway differed for transgender people.
The group felt that Corrections current operational practice to not bunk transgender women with women is good.
Women in prison have a low level of trust in authority and are unlikely to come forward if they feel threatened by a transgender person in prison.
The point was made that in a prison environment it may be difficult to maintain physical distance from someone if you feel you need to.
Corrections clarified that the policy documents produced will be provided to the operational teams.
The Department of Corrections policy document titled "Launch of new strategy for women" very commendable, SUFW believe that this document outlines many of the reasons why male and female inmates should not be housed together.
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