Prison

Trans and gender diverse people facing imprisonment, or who are in corrective services, have the same right to recognition of their genders, identities, and lives as anyone else. How trans inmates are supported, and what services and care they are provided, does depend on what state they are incarcerated in.

In NSW, prisons and correctional facilities must follow the NSW Justice and Corrective Services’s Custodial Operations Policy 3.8: Transgender and Intersex Inmates [PDF]. The policy details how corrective services are to manage incarcerated trans people in a safe, non-discriminatory, and secure way. Justice Health also have a policy governing access to gender affirming care for trans people who are incarcerated.

NSW’s prisons are gendered, with separate facilities for men and women.

The current NSW Corrective Services policy for trans people in prison (Custodial Operations Policy 3.8) uses a framework of “recognised transgender people” and “transgender people”. Those who have updated the gender marker on their birth certificate are '“recognised” and must be treated according to identity documents.

Those who have not legally affirmed their gender must still be received as their “identified gender,” but may be treated differently.

For trans people with a binary or predominantly binary gender, the policy stipulates that you must be managed and supported as the “gender with which [you] identify at the time of incarceration,” even when you have been incarcerated previously with a different name or gender.

Where trans inmates reside depends on the person in question and what facilities are available. During intake and assessment, an attempt to find the best possible facility will be undertaken.

This may look like being housed individually, inside of a specialised unit for trans women in a male correctional center, or in some cases, housing trans men in women’s correctional centres for reasons of safety.

The policy states:

“Transgender … inmates are to be addressed by their chosen name and according to their identified gender. Male-to-female transgender inmates are not to be called by their male given names (regardless of what is recorded on their warrant file) or referred to as ‘he’; they are to be called by their female names and referred to as ‘she’. A similar principle applies for female-to-male transgender inmates.

All accommodation records are to be amended to reflect the inmate’s identified gender.“

The policy also states

“Transgender … inmates have the right to dress at all times in clothing appropriate to their gender of identification, including those inmates housed in correctional centres of [the gender they were presumed at birth]. Clothing and underwear appropriate to their identified gender is to be provided to transgender and intersex inmates.”

There are specific additional guidelines for searches and drug testing, reception and induction, and rehabilitation in the Policy.

Justice Action write that while segregation from cis prisoners may be in the best interest of the safety of trans inmates, “the line between prisoner safety and transphobic discrimination is easily blurred by the prison authorities, and prison officials can sometimes conceal their discriminatory behaviour, remaining unaccountable for their actions, by claiming that they are acting to protect transgender prisoners.”

The NSW Trans and Gender Diverse Criminal Justice System Advisory Council have also released a Briefing Paper on Protecting the Human Rights of Trans People in NSW Prisons available here.

The Custodial Operations Policy 3.8 states that “an inmate who does not identify as either male or female are to have escort conditions determined according to the assessment finding/s and placement in either a male or female centre”.

If you are to be incarcerated and are not a man or a woman, you will be sent to the Metropolitan Remand and Reception centre for “assessment and determination of placement.”

The policy also states “an inmate who does not identify as either male or female is to be provided with their preference in relation to clothing to be issued and purchase of personal care items, cosmetics, clothing and underwear.

Trans prisoners are able to access gender affirming hormone therapy while incarcerated. How inmates can access hormone therapy depends on whether or not you have a previous prescription.

For those who have been previously prescribed hormone therapy, your existing hormone therapy must be continued and appropriately managed.

For inmates seeking to initiate gender affirming hormone therapy, a treatment plan will be developed by a team of Justice Health & Forensic Mental Health Network (JH&FMHN) staff, Correctional Services NSW (CSNSW) psychologists, and either a case management officer or a staff member from Offender Services & Programs .

The policy also states that “transgender inmates may make an application to have elective gender surgery, hormone therapy or other therapies of choice, specific to their needs at their own expense.”

If you or someone you know has experienced discrimination or violence in a correctional facility, you are able to lodge a complaint.

The NSW Ombudsman receive complaints from inmates and offenders. They write that serious complaints - such as allegations of assault by staff or serious maladministration, can be immediately referred to us without going through the internal complaints system. If we receive a complaint we think should have been raised within the correctional system first, we will give the person complaining advice about how to do that.”

The Ombudsman recommends that complaints should first be raised with an inmates support wing, Unit Manager, or via an inmate application form to the General Manager.

Inmates can also speak to the Official Visitor, who is available at a facility once a fortnight, and can help inmates with lodging complaints to agencies such as the Ombudsman.

If an inmate wants to discuss any complaint with us – either about the correctional system or about any other NSW agency they can call us. We are #8 on the freecall list on all inmate phones. Calls to our office are free to the inmate and not monitored by correctional staff.

All letters to and from us are confidential and cannot be opened by correctional centre staff. When an inmate gets a letter from us, they will be asked to sign a cover sheet to say it has been received and not opened. This is then placed on their file and acts as their receipt.

The Ombudsman

You can find out more about the complaints process on the Ombudsman’s website.

The Gender Center provide outreach support for people who are or have recently been incarcerated. You can find out more on their website.

Further assistance is also available through Inner City Legal Centre who offer a state-wide free legal service for trans and gender diverse people.

The Women’s Justice Network is an organisation that supports the wellbeing of women (cis and trans) affected by the criminal justice system. You can make a referral to request their support and services here.

They also provide “mentors”, who are volunteers who are non-judgemental, can listen, and provide support that is guided by your own goals and interests. They can provide regular contact, help provide skills to stay out of prison, and help advocate for and support you.

The resource below provides some more information about this relationship, and how to apply for a mentor. Visit the Women’s Justice Network site if you are interested in becoming a mentor, here.