The Department of Corrections have released the following discussion document and are asking for public feedback by Friday September 23rd.
Corrections seem to be genuine in their request for feedback and have consulted widely, unfortunately they did not initially consult with us but they have now agreed to meet with us.
Please read the discussion document and complete the survey if you can. The survey covers other issues but none of the answers are compulsory and you are able to complete just the section relating to male and female prison accommodation if you wish.
Our notes below outline where Speak Up for Women stand on this and give you an indication of how our own submission will read.
Our submission relates to item:
2. Ensuring people are assigned to male and female prisons by considering a range of factors
The options Corrections are asking for feedback on are:
Option 1: revoke the birth certificate rule and add birth certificates as one of the several factors that may be considered if it is presented during placement decisions (regulatory option) Under this option, a birth certificate may be considered alongside a range of other factors, such as the person’s gender and the wellbeing and safety of the applicant and others in prison. This would mark a change from the status quo, which requires a person to be placed according to the sex on their birth certificate, if it is presented. Under this approach, a person would not be disadvantaged if they did not present their birth certificate. This is because other information, such as gender, can be considered in the prison placement decision. This option would retain existing regulatory provisions that exclude someone accused or convicted of a serious sexual offence from applying for a review of their determined sex.
Option 2: status quo – keep the birth certificate rule in place and have an operational response to manage people when required (non-regulatory option) Under this option, the birth certificate rule would still apply. If there was a possibility of harm to or from other people in the prison due to the placement, Corrections would manage this with an operational response. For example, it may be necessary for Corrections to place someone on directed or protective segregation.
We do not agree with either of the proposed options.
Option 1, which does not rely on the birth certificate does have some merit but it is our belief that the overriding factor that should be considered when housing a prisoner is their biological sex.
In the case of a biological woman who identifies as a woman, she should be housed in the women’s accommodation with no biological males.
In the case of a biological man who identifies as a woman, he should be housed in the men’s accommodation with no biological females.
Where a person's biological sex does not match their gender identity they should either be housed in accommodation that matches their biological sex or in accommodation specifically for transgender prisoners of their own sex, they should have some choice in the matter.
Option 2 seems to rely on the birth certificate by default and it may have to be proven that there is a problem before a particular transgender prisoner is removed from the opposite sex prison accommodation. It is the status quo, but self-ID will mean that any person can change their sex marker on the birth certificate, potentially opening this pathway up to any male who is happy to sign a statutory declaration. This could be done by a prisoner after sentencing who, when faced with a long stay, might imagine that a women’s prison would provide a safer and more enjoyable experience.
Other points worth thinking about and including in your own submission might include:
Our Human Rights Act 1993, in particular section 55 allows for single sex accommodation in institutions and prison could be regarded as one of the most important of these spaces.
We can see that there could be problems with having to individually manage transgender prisoners due to them not being able to be housed in the general prison population with either males or females but this should not be the concern of female prisoners, their safety should not be compromised.
Biological sex is the only way to segregate and to keep women safe from male prisoners, there is nothing to indicate that a male is less likely to pose a risk if he identifies as a woman.
Women should be able to be housed without males at all times and regardless of how a male might identify.
The birth certificate is a low value document when used to identify a person's sex and will become even more so once the BDMRR self-ID legislation is implemented during 2023.
Clause 79(2) in the new BDMRR legislation allows for a birth certificate to be bypassed in favour of other relevant information;
79(2) Any individual, private sector agency, or public sector agency authorised or required to ascertain an individual’s sex or gender for a particular purpose may take into account either or both of the following:
the information contained in a certificate issued under this Act:
any other relevant information.
Thank you for taking part in this consultation.