New Zealand Law Society

Navigation menu

Policy changes on transgender prisoners: a step forward?

22 November 2013

Earlier this year, the Equal Justice Project (EJP), a student-led pro bono organisation based at the Auckland University Law Faculty, produced Transgender Prisoners’ Rights Ignored, a report on the Department of Corrections’ policies regarding transgender prisoners.

The report concluded that policies on housing and healthcare were discriminatory and placed transgender prisoners at risk of sexual assault and rape. The Department of Corrections’ recent policy change is a positive step forward, but it only addresses one concern raised.

In September, Corrections Minister Anne Tolley announced that transgender prisoners who have had the gender on their birth certificates changed to reflect their preferred gender will now be housed in accordance with that preferred gender. Transgender prisoners whose birth certificates have not been changed may apply to Corrections’ chief executive to be housed with inmates of their identified gender, except for those serving or facing charges for serious sexual offending.

There are currently nine transgender prisoners in New Zealand. It is uncertain how many of these nine have had the gender on their birth certificates changed and how many will need to apply for special dispensation.

Potentially problematic is that fact that the housing of transgender prisoners without updated birth certificates is contingent upon the chief executive’s discretion.

Transgender persons face significant practical, legal and administrative obstacles in securing consistent recognition of their preferred gender in official documentation, including birth certificates. Care should be taken to ensure the threshold for recognition of preferred gender in terms of prison housing is not set unattainably high. Additionally, the role of clinicians in guiding the chief executive’s decision-making – if any – is uncertain.

The refusal to properly house transgender prisoners who have been convicted of sexual assault is also potentially discriminatory.

Cisgender (where an individual’s self-perception of their gender matches the sex they were assigned at birth) prisoners convicted of sexual assault do not face secondary punishment by being housed in a prison where their chances of facing assault are disproportionately high; yet, no one is questioning why this is something that transgender prisoners should experience. This aspect of the policy is presumably founded upon a desire to protect cisgender women prisoners and is therefore disingenuous in its premise.

Apart from the housing of prisoners, what also continues to be ignored is the disparity in medical treatment received by transgender and cisgender prisoners.

Gender dysphoria is a recognised medical condition where a person experiences serious disassociation with the sex they were assigned at birth.

Rule M.03.05.02(h) of the Department of Corrections’ Prison Service Operation Manual does not allow transgender prisoners to begin medical treatment while incarcerated or to access gender reassignment surgery. This breaches prohibitions in the New Zealand Bill of Rights Act 1990 and Human Rights Act 1993 against discrimination on the grounds of sex and psychiatric illness.

The discriminatory nature of M.03.05.02(h) is obvious when one considers that the manual does not impose restrictions concerning any other medical conditions. M.03.05.02(h) additionally contravenes both s75(2) of the Corrections Act 2004 – which requires the standard of health care available to prisoners be reasonably equivalent to the standard of health care available to the public – and The United Nations Standard Minimum Rules for the Treatment of Prisoners.

The lack of action in providing medical treatment for transgender persons is unfortunately unsurprising, given the continued stigma and misinformation surrounding gender dysphoria.

Minister Anne Tolley once stated during question time in Parliament that a pre-surgery transgender woman “is still a man.” Such a statement clearly confuses body parts with gender identity. More recently, New Zealand First’s Spokesperson for Corrections, Asenati Lole-Taylor, raised concerns over the safety of cisgender women prisoners if housed together with transgender women prisoners, who may exhibit “masculine” traits.

While it is encouraging to see concern for the safety of women, this concern is misplaced and factually inaccurate in this context. Sterility is an irreversible change for persons undergoing hormone treatment. A reduction in libido is also an urogynecological effect, along with the reduction or loss of erection and ejaculation.

But perhaps most importantly, no perceived risk to cisgender prisoners should take precedence over the actual risk of harm that transgender women face in men’s prisons.

While Corrections’ change in housing policy is a positive step towards ensuring the safety and protection of transgender prisoners in New Zealand, it is premature to pat ourselves on the back for providing equal rights.

The situation of transgender persons is not homogenous. More can be done to ensure the new policy is inclusive of as many transgender prisoners as possible. More can be done to break down other discriminatory barriers faced by imprisoned transgender persons.

Let this policy change be a catalyst for further progress — not a completed checkbox on a social issues to-do list.

To learn more about The Equal Justice Project, visit our website: www.equaljusticeproject.co.nz.

Last updated on the 17th March 2016