The full report can be accessed here.
The Need for Policy Reform
Transgender people are especially vulnerable in prisons due to the disconnect between their state-recognised gender and their personal, inherent gender identity. The Pro Bono team was asked to conduct research into the current legal position regarding the treatment of transgender prisoners in New Zealand. The team then compared New Zealand’s position to the approach taken in a number of international jurisdictions. Their research found that the New Zealand Department of Correction’s policy is not only inadequate to address the needs and welfare of transgendered prisoners, but also contrary to international obligations, and should be challenged on a number of grounds.
The Dangers Transgender Prisoners Face
The team explored two interrelated issues as part of their research. The first was the right to commence or continue medical treatment while in prison. The identity crisis that many transgender people face is a classified mental illness (Gender Identity Disorder) and being a transgender person is a recognised medical condition. Still, transgender prisoners are not allowed to ‘commence’ treatment for issues related to their transgender identity while in prison under current corrections policy (r M.03.05.02(h) of the Department of Correction’s Prison Service Operation Manual (PSOM)), although they are allowed to continue treatment commenced before imprisonment, at their own financial cost.
EJP challenges this policy as a breach of the corrections legislation itself. The Corrections Act 2004 states that it is a minimum requirement that a prisoner is to receive medical treatment when reasonably necessary; by denying transgender prisoners treatment for recognised medical conditions (unless they had commenced treatment prior to imprisonment), PSOM r M.03.05.02(h) is contrary to its empowering legislation. The Pro Bono team advocated that New Zealand adopt an approach similar to that taken in New South Wales in Australia, where the corrections policy provides for the funding of therapy for transgender prisoners if it is in continuation, and allows for the commencement of such therapy if it is self-funded. Under the NSW corrections policy, therapy for transgender prisoners is recognised as a right.
The second issue was the type of gender classification test used by Corrections under the Corrections Regulations 2005, reg 190. The Pro Bono team found that this test related to problems in the accommodation of transgender prisoners. Under the current corrections policy, only those who have completed gender reassignment surgery have the option of being placed in the prison of their identified gender. The policy presents a very constrained view of “completed” – the individual is required to have the genital appearance consistent with a person of the desired sex. However, transgender individuals in New Zealand can be waitlisted for 20 years before surgery is performed. Given this reality, most transmen (individuals who are assigned as female at birth but identify as male) and transwomen (individuals who are assigned as male at birth but identify as female) chose to opt for more immediate options such as hormone therapy.
This means that a number of transgender prisoners do not have the option, under the current corrections policy, of being placed in a prison of their identified gender. This can create a real danger of harm for these individuals – Transwomen prisoners are at particular risk of rape and violence in a male prison. The Pro Bono team advocates that the test in the corrections policy in relation to this issue be altered from “completed gender reassignment surgery” to a test that asks if a transgender individual has taken “all steps reasonable” to become their desired gender, such as psychiatric and hormone therapy. The team prefers the United Kingdom position, which recognises gender reassignment as a protected characteristic in their corrections policy; but also recognises how arbitrary the test of “complete gender reassignment surgery” is.
The Possibility of Human Rights Breaches
The team considered whether the current corrections policy is inconsistent with the New Zealand Bill of Rights Act 1990 (NZBORA). Under s 19(1) of the NZBORA and s 21 of the Human Rights Act 1993, everyone has a right to freedom from discrimination on the ground of ‘sex.’ Since being transgender has been found to be a recognised medical condition, there are arguably grounds of discrimination in the fact that transgendered prisoners are not able to start treatment and must pay for continuing treatment once incarcerated, while this is not the case in relation to the treatment of other medical conditions affecting prisoners. This furthermore puts transgendered prisoners at a material disadvantage. It is also arguable that because there is a universal provision of services for prisoners and their health issues, but not for the recognised health issue affecting transgender prisoners, this constitutes disproportionately severe treatment in contravention of s 9 of the NZBORA.
The team concluded that the current corrections policies relating to transgendered prisoners are arguably contrary to the NZBORA. Furthermore, New Zealand is a signatory to the International Covenant on Civil and Political Rights (ICCPR). Article 26 of the ICCPR enshrines the right of freedom from discrimination on the basis of gender identity. By preventing transgender inmates from commencing medical treatment relating to their transgender status, the current Corrections Regulations make a distinction based on gender identity in denying medical treatment – contrary to article 26.
The scale of research needed to provide the general overview of the law surrounding transgender prisoners from eight jurisdictions required a dedicated team of volunteer researchers. The project was led by Lilla Dittrich with the help of Grace Abbott, Kit Adamson, Annie Cao, Shelley Deng, Gayathiri Ganeshan, Christine Lee, Michael Sapolu, Maanya Tandon and Sally Wu.
Volunteers working on the report commented on how rewarding the experience was: “We’ve been working on a number of varied, but all equally as exciting projects. The transgender prisoner project was something that really sparked my interest because I’ve got a real passion about prisoners and their rights and it was an area that I had never really thought much about before, but is such a critical issue that needs to be addressed.”