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Saturday 08 April 2017

Transgender Prisoners: The United Kingdom Acts

Posted in: Comment
By Craig Young - 3rd February 2017

In the United Kingdom, the Prisons and Probation Ombudsman has just published a damning report on (the lack of) transgender prisoner safety in the United Kingdom. What lessons does it have for New Zealand?

Regular readers of this column will note that along with figures such as Kelly Ellis QC, Auckland University's Equal Justice Project and No Pride in Prisons, I have been strongly critical of the current government's negligent policies insofar as transgender prisoners are concerned.
Granted, former Corrections Minister Anne Tolley announced that henceforth (?) transwomen prisoners would be incarcerated in gender-appropriate facilities given their currently self-perceived and presenting gender, but this appears to be primarily dependent on whether their preliminary defending legal counsel and presiding judges are aware of this purported policy change, which seems to indicate it is at the latter's perception.

Lamentably, has been covering this issue for the last five years of this government's term of office, amidst four changes of Corrections Ministers. During that time, we have encountered repeated assertions that the gender appropriate incarceration policy was supposedly 'in place,' only for No Pride In Prisons to uncover instances of transwoman prisoner abuse and threatened abuse within unreconstructed, still transphobic New Zealand prisons. Indeed, the perserverance and concern displayed by No Pride in Prisons during this period has been both diligent and remarkably disciplined and focused.

The abuse occurs within both government-run Department of Corrections prisons and those administered by Serco, a British-based private prison provider with a dire record of continual substandard service provision quality across a range of areas, including transgender prisoner health and safety in New Zealand's South Auckland Wiri Correctional Facility.

Gisborne District Court Judge Warren Cathcart appeared woefully ignorant of the status of gender dysphoria as a legitimate medical diagnostic category when he sentenced Daytona Haenga (29) to a gender-inappropriate male prison despite the purported policy change (2013) in 2015, making ignorant comments about "lifestyle choices" and "special privileges." In 2016, controversy arose over strip searches of transwomen in prisons, despite assurances that these were subject to an allegedly "amended" policy.

I decided to have a look at the Department of Corrections Prisons Standard Operating Manual to evaluate these claims and found that there was no such detailed reference to policy, procedures, operational criteria and detail within that core departmental document, nor were there any specific Department of Corrections reports on transgender prisoner health and safety that might have suggested policy analysis and inclusive operational reform was occuring.

One must be sceptical therefore of further claims of ostensible reform without documented evidence, preferably within the context of strategic reports, citation within departmental and organisational performance reviews and direct ministerial involvement and attention. No Pride in Prisons is quite correct to state that hiring LGBT Correctional staff is not enough in this context.

With the above woeful summary of ostensible yet shallow statements of "reform" that turn out not to be reflected in concrete policy, procedures and practice from New Zealand, let us now turn to the United Kingdom and its recent Prison and Probations Ombudsman's report on transgender prisoner safety issues, published in January 2017.

The Ombudsman, Nigel Newcommen, makes an excellent case for the particular vulnerability of transwomen prisoners, at risk of bullying, assault, self-harm and suicide, particularly if imprisoned in gender-inappropriate male Correctional facilities. Indeed, the PPO investigated the current situation in the United Kingdom after the tragic suicides of two transgender prisoners within British Correctional settings earlier in 2016.

Unlike New Zealand, the United Kingdom's Ministry of Justice undertook a detailed report on the current status and experiences of transgender prisoners in that country, which resulted in Prison Service Instruction 17/2016, which set forth a detailed set of regulations for the management and safety of transwomen prisoners, in November 2016. Given that New Zealand's former Corrections Minister Judith Collins must have been aware of this report, why was there no equivalent commitment from her ministerial office to adopt analogous policies and procedures here?

Over the last four years, the PPO has completed investigations into thirty eight complaints about transgender prisoner health, safety and needs within British Correctional institutions. Sadly, five of these were fatalities, usually from prisoner suicide. Risk assessments and case conferences were not always carried out in a timely and diligent manner, with tragic consequences for the health and safety of these women. One case study noted that a cited transwoman prisoner had not been informed about the policy change, possibly because staff were not aware of its significance, magnitude, or even existence. Valuably, the report highlights the seriousness and evident harm from cismale prisoners in gender-inappropriate prisons, citing harrassment, aggravated assault and sexual violation as particular risks for transwomen in that context.

Prison Service Instruction 17/2016 sets forth an admirably detailed and comprehensive list of essential steps for transgender prisoner health and safety. They involve early contact with transgender inmates, early assessments and decisions related to multidisciplinary correctional staff teams, sentence management, training and expertise, recording, monitoring and data reporting.

The document runs to sixty pages and I have only briefly summarised it here, due to space considerations. There is no doubt that the United Kingdom is taking its statutory obligations toward transgender prisoner health and safety seriously and that this has resulted in documented, practical policy and procedural reform.

How do current New Zealand Correctional policies and procedures compare to this? I took the opportunity to visit the New Zealand Department of Corrections webpage. I note that this now includes references to prisoner placement, shared accomodation risk assessment, specified gender and age movements, information for transgender prisoners and operational stages, as well as M.03.05, a specific section within the Prison Operating Manual that now refers to transgender and intersex prisoners.

This is commendable, yet it does not include the detail involved in the UK PPO Report on Transgender Prisoners. One would hope and indeed encourage the Department of Corrections to take note of applicable sections of the UK PPO Report and adapt them to meet New Zealand Correctional circumstances when it comes to our own Corrections polices, procedures and practice.

Strongly Recommended:

Prison and Probations Ombudsman Report: Learning Lessons Bulletin 3: January 2017: Transgender Prisoners:

Prison Service Instruction 17/2016:

Craig Young - 3rd February 2017

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