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The Transgender Prisoners Debate

in NEW ZEALAND, 13/07/2013

Transgender lawyer Kelly Ellis and her allies at the University of Auckland's pro bono Equal Justice Project have put together an impressive, if horrifying, dossier on the abuse of transsexual prisoners human rights in the context of gender-inappropriate imprisonment. One such area of concern is continued access to hormonal treatment while in prison.

The Equal Justice Project considered this an unsatisfactory situation. It contravenes the enabling legislation in this context, the Corrections Act 2004, which specifically states that a prisoner should receive medical treatment in this setting when 'reasonably necessary," and as noted above, gender dysphoria is a recognised medical condition with clinical criteria. The EJP therefore suggests funding ongoing transitional hormone treatment in the case of prisoners with ongoing needs, while prisoners could also commence treatment if they can pay for it on their own cognisance.

As well as hormone treatment, prisoner classification is also a major problem. At present, the Corrections Regulations 2005 (Regulation 190) leads to potentially life-endangering problems for transgender prisoners, as it only allows post-operative transsexual prisoners access to gender-appropriate correctional facilities, instead of recognising transitioning as a continuous process. This is patently discriminatory, given the waiting period for the achievement of full reassignment surgery can be as long as twenty years. This dangerous and foolhardy obstacle means that most transitioning transsexual prisoners cannot be placed in gender-appropriate correctional facilities. This causes severe risks for transsexual women in the process of transitioning, given already documented instances of rape and sexual assault from cismale prisoners within gender-inappropriate prisons.

Is this a violation of the Bill of Rights Act? According to the Equal Justice Project, it is indeed so. When the Clark administration handed down its Crown Law Office opinion, which 'read' gender identity into gender insofar as the Human Rights Act and Bill of Rights were concerned, it meant that transphobic discrimination was therefore illegal. And in this context, refusal to allow transitioning transsexual prisoners access to hormonal treatment and safe, gender-appropriate correctional facilities, therefore does constitute a violation of the relevant legislation. The report also notes that New Zealand is a signatory to the International Covenant on Civil and Political Rights, which also expressly forbids discrimination on the basis of gender identity.

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