Part 3.8 of the Custodial Operations Policy and Procedures of Corrective Services NSW (CSNSW) outlines how prison authorities deal with transgender and intersex inmates. It aims to achieve best practice, non-discrimination, safety and security.
The policy stipulates that a transgender person must be treated “as the gender with which they identify at their time of incarceration”, addressed using their preferred pronouns and assessed as to which facility is the most appropriate for them to serve out their sentence.
More often than not though, both trans women and men are placed in maximum security prisons and kept in isolation.
Just like on the outside, the high levels of violence that trans people face inside is the cause of this prolonged solitary confinement, which by UN standards constitutes torture.
This way of dealing with transgender, gender diverse and intersex inmates within the NSW prison system indicates that while CSNSW has acknowledged and addressed people of diverse gender and sexualities, it has only done so to the extent that they’ve again been relegated to the margins.
But change is coming. CSNSW is now working in collaboration with the NSW Trans and Gender Diverse Criminal Justice System Advisory Council to draft a new policy that caters for the needs of trans and gender diverse inmates more adequately with the aid of peer input.
NSW Community Advocates for People in Prisons is part of this process. NSWCAPP is an advocacy service for trans and gender diverse people caught up in the NSW criminal justice system, providing them with materials and other types of assistance.
NSWCAPP is currently working with a number of other organisations in developing strategies that deliver best outcomes for trans and gender diverse people dealing with police and corrections, especially for “trans femme people of colour currently housed in cis-male dominated prisons”.
Indeed, while trans women are not supposed to be sent to male prisons it still happens. This is highlighted by the case of Veronica Baxter: an Aboriginal transgender woman who took her own life in March 2009, just days after being placed in Silverwater’s male remand centre.
Keith Quayle is an organiser of NSWCAPP. He’s a Malyangapa and Barkindji gay man, who was raised on Dharug country. And his lived experience of the NSW correctional system informs the advocacy work he carries out on behalf of trans and gender diverse people in detention.
Right now, NSWCAPP is also organising the Take Over Oxford Street Mardi Gras march, which is an alternative event set to take place on 6 March, with the aim of bringing back some of the radical protest roots that the event held dear back in the 70s and 80s.
Sydney Criminal Lawyers spoke to Keith about the need for the overhaul of the CSNSW transgender policy, issues trans and gender diverse people face on the inside, and how the broader picture he and others are working towards is the abolition of prisons altogether.
Firstly, you’re an organiser of NSW Community Advocates for People in Prisons, which is a service that provides assistance to trans and gender diverse people caught up in the criminal justice system.
Keith, what sort of a need is there for a group like yours that primarily deals with trans and gender diverse inmates?
The needs for the people in custody that identify as transgender and gender diverse are complex and wide-ranging.
We’ve identified that trans and gender diverse research is underfunded, yet it’s needed in order to create workable statistics that will provide us with up-to-date information for individual services within educational and government departments.
You’ve described NSWCAPP as a group that works “within and outside of the current frameworks for the best possible outcomes for trans and gender diverse people at all stages of their contact with NSW police and CSNSW”.
So, what does that mean on the ground?
We work within the Corrective Services and NSW police guidelines on a number of council projects that we’re involved in.
But it also means that we work with individuals, organisations and political groups that are aligned with our vision around prison abolition and the defunding of the police.
We want to create all types of access for the people we’re advocating for, and we’ve found that we have to work both within and outside of the framework to provide the best possible outcomes for the people we’re representing.
NSW Community Advocacy for People in Prisons also prioritises the needs of First Nations trans and gender diverse people caught up in the system.
How does the Australian system treat Aboriginal and Torres Strait Islander transgender people? And what sort of issues does this lead to?
Within my culture, trans and gender diverse people have been around since the beginning. While Australia has a record of human rights abuses against the Indigenous people since the first landing of the English.
Brotherboys and sistergirls are at a higher risk of sexually transmitted diseases due to the ever-present risk of extreme physical and sexual violence during their time incarcerated.
They’re primarily housed in maximum security facilities for their protection, which opts them out from opportunities, such as working on remand and participating in education.
They also face racism within predominantly white trans communities, as well as when communicating in English, as in most cases it’s their third language.
NSWCAPP is a member of the NSW Trans and Gender Diverse Criminal Justice System Advisory Council, which at present is rewriting the Corrective Services NSW trans and gender diverse policy.
How adequate or effective is the policy at present? And what has to change about it?
The 3.8 Transgender and Intersex Inmates policy is grossly inadequate. It’s detrimental to the overall wellbeing of trans and gender diverse people.
The current policy states that male-to-female trans people may be accommodated in cis-female facilities. But this tends to only apply to people who’ve started their transition in the community.
Female-to-male trans people are never placed in cis-male correctional centres due to the risk of physical and sexual violence.
Primarily, all trans and gender diverse people are isolated due to their identified risk. And this can go beyond 15 days, which is regarded as torture by the United Nations.
What needs to change is the policy itself, and the people who are writing it. And it’s great that Corrective Services NSW are coming to the table to listen to trans and gender diverse voices, and that of their allies.
In the coming year, your advocacy service is also working with Dr Mindy Sotiri and the Justice Reform Initiative. Its tagline is “jailing is failing” and it looks towards alternatives to the punitive carceral system.
Can you talk on what sort of a vision it is that abolitionists have?
We agree with the Justice Reform Initiative in that jailing is failing.
In our opinion, it’s another form of slavery. It’s another form of being sent to your room and scolded. And there’s a direct link there in why people think this is an acceptable option.
Abolitionists, like myself, believe in creating social spaces, such as activist hubs, that will encourage learning, socialising, addressing and redirecting anger towards positive actions in the local community.
We believe in defunding punitive services and redirecting those funds to educational services.
Going into prison ought to be about becoming a better citizen, making amends where possible, and then continuing upon one’s journey of rehabilitation.
The abolitionist idea is a protracted strategy – it’s down the line. So, for now, we must act as agents on the outside for those on the inside, creating dialogues for them and creating strategic ways in.
Due to COVID-19, the regular Gay and Lesbian Mardi Gras parade is to take place at the SCG. Along with Pride in Protest and other groups, NSWCAP is organising an alternative Mardi Gras event at the traditional Oxford Street site.
What message is this alternative event set to convey? And what’s it going to entail?
We have four demands:
The first is to kill the discriminative religious freedoms bill.
Number two is to free the refugees from detention centres and hotels across Australia.
Three is to stop all First Nations deaths in custody and to show solidarity with the BLM movement and people in prisons, primarily transgender women housed in cis-male facilities.
Number four is decriminalise drug use and sex work in all states of Australia and encouraging the unionisation of sex workers.
And lastly, Keith, over the coming year, NSWCAPP is also going to be involved in a research project highlighting the systemic violence trans and gender diverse people face at all stages of the criminal justice system.
In your opinion, why is the system so brutal towards trans and gender diverse people? And would you say things are starting to improve?
The system is brutal and unforgiving for anyone entering into custody, but for trans and gender diverse people it’s dire.
The lack of outside services and communication creates these echo chambers of prison talk. Nothing of substance gets reported unless it is heavily screened first by Corrective Services NSW before reporting it to the public.
So, there’s a need for a lot to change in terms of their policies, procedures and real time action for prisoners on the ground.
We’re excited about the research project we’re undertaking over the coming months, and to workshop with trans and gender diverse people who have been to prison.
We are thankful to Professor Patrick Keyzer’s contribution in conducting the project, which will be completed in partnership with trans and gender diverse people in the field and their allies.
I’m very hopeful that change is coming with initiatives, like ours, as well as the TransHub and the Gender Centre, which are making headway in prisons, within the frameworks and outside of the frameworks.
If we don’t start listening to trans voices – primarily trans women of colour, who have been around since the beginning of time – we will slowly undo their humanity and our own.
Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.