Corrections Continues to Fail Transgender Prisoners – And Breaches the Official Information Act

“We are sensitive to the needs of transgender prisoners including the issues surrounding their placement and safety.”

That’s the line we got in every single press release from Corrections about transgender inmates this year. During the hunger strike for Jade Follett, who was being held in Rimutaka, a men’s facility, despite her request for a transfer, that’s what they said (along with denying the existence of her transfer request, considering they lost it). When news broke of a trans woman being assaulted and raped in Wiri, another men’s facility, that’s what they said. If someone confirms the rumours that the prisoner who committed suicide in Mt Eden was trans, that’ll be what they say (as an aside, if anyone has information about this, please get in touch with either myself or No Pride in Prisons). They’ve fallen back on this line over and over again in the face of mounting evidence to the contrary.

Corrections has never responded satisfactorily to activists and advocates and their demands for better, safer treatment of trans people in prisons. They have not responded satisfactorily to No Pride in Prisons’ attempts to hold them accountable. They did not take responsibility for the rape in Wiri, a direct result of their policy around trans placement and their double-bunking policy. They have not taken any steps to improve their placement policy beyond the Minister of Corrections, Sam Lotu-Iiga, stating that the policy was “fairly new” and that if it kept failing he’d look at changing it.

When the news broke that Jade Follett had been transferred, we kept pushing for more. I was explicit in my interviews with press that this transfer wasn’t the whole issue and that policy around initial placement needed to be addressed, including around remand facilities. It isn’t clear in the Corrections Prison Manual whether trans prisoners are placed in the correct remand facility or whether they’re eligible for transfer while awaiting sentencing, but we know both Jade Follett and Daytona Haenga more recently were in men’s remand facilities – Haenga ended up in protective segregation while in remand.

Corrections also need to address their transfer policy around serious sexual assault – currently a trans prisoner cannot be transferred to the correct and safer facility if they have been convicted of a serious sexual assault against their gender. Anecdotal evidence seems to point to the fact that trans people can be convicted of ‘serious sexual assault’ for not disclosing their trans status before a sexual interaction. Regardless of the details of the conviction, however, deliberately exposing trans women to a 13x higher rate of sexual abuse is torture, and at the very least surely counts as “disproportionately severe” in the eyes of the law. Either way, Corrections’ policy around this is abhorrent and needs to be repealed.

Back in June and July a group of us submitted a range of Official Information Act requests to Corrections asking for information about trans and intersex prisoners and their conditions. Specifically, we asked about how many transgender prisoners there were and where they were being held. Corrections refused to answer, stating “we cannot readily extract statistics about numbers of current and former transgender prisoners from our records,” that they would “be required to manually review a large number of files” to get that information, and that was not “an appropriate use of our publicly funded resources”. Today, Deputy National Commissioner Rachel Leota told Radio NZ that there were 20 transgender prisoners in Corrections facilities.

Where did this data come from? Did they suddenly decide, now that there’s more public focus on these issues, that extracting this data was an appropriate use of public funds? Are our lives and safety only worthwhile when there’s public outcry? Did Corrections take Sophie Buchanan’s advice and find someone to call up the manager of each facility to get an estimate (and respond to RNZ but not the long-overdue OIA request?)

This is just another example of Corrections showing a complete disregard for incarcerated trans people and the advocates trying to improve things.

It’s time for Minister Lotu-Iiga to take action and do something, instead of waiting for Corrections policy to continue to fail trans prisoners with horrific results. It’s time for placement policy to be changed. It’s time for some kind of process, before placement into remand, identifying the needs of trans prisoners and where they need to be for their safety. It’s time to get rid of the frankly torturous serious sexual assault part of the transfer policy.

It’s time for Corrections to take responsibility for the harm they have caused and continue to cause, and to admit that they are not, in fact, “sensitive to the needs of transgender prisoners including the issues surrounding their placement and safety.”

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Silence from Corrections: Ongoing OIA Requests and Evasive Answers About Incarcerated Transgender People

Over the last few months a few of us – specifically Sophie Buchanan and Emilie Rākete – have been putting in Official Information Act request after request to the Department of Corrections to try figure the fuck out what’s going on with transgender people who are incarcerated. I wrote about this before Corrections marched in Pride – that post has a handy but harrowing list of facts about the current (so-called ‘updated’) policy on trans prisoners.

A quick summary:

  • currently trans people are imprisoned according to their birth certificate; to change your birth cert you gotta go through Family Courts, a long and pricey process not available to most.
  • A trans prisoner can be moved if any Corrections staff has “doubts” about their sex/gender; ‘doubts’ includes strip searches.
  • If a trans prisoner has been convicted of “serious sexual assault” (more on that term later) they can never be put in the correct facility, despite studies proving that 53% of transgender people in prisons experience sexual assault (compared to only 4.4% in the general population)

The OIA Requests:

  • May 21st: “Information about transgender prisoners
    • This request was for relatively simple information about how many transgender prisoners there are, where they are, and why they were placed there. It also asked about procedures in place to protect trans prisoners, as well as rates of abuse.
    • The Department of Corrections refused to answer this request, stating “we cannot readily extract statistics about numbers of current and former transgender prisoners from our records, as this information is noted on individual prisoner records, which are de-activated when they are released from custody. In order to identify this type of specific information, we would be required to manually review a large number of files” and that this would not be “an appropriate use of our publicly funded resources”. They restated this twice in response to all three parts of this OIA request.
    • In response to the question about why this information is not requested, DoC stated “we only obtain personal information to help meet our legal functions to improve public safety and reduce reoffending”.
    • To try get DoC to actually give us some information, Sophie complained to the Ombudsman and put in 4 more specific requests.
  • June 20th: “Current number of transgender and intersex inmates
    • This was a simple request: “please provide the number of transgender and intersex prisoners currently in the prison system, to the best of your knowledge.”
    • Department of Corrections responded a full 12 days after the legal due date for their response. Again, DoC refused the request, once more stating “we cannot readily extract statistics about numbers of current transgender prisoners from our electronic records, as this information is noted on individual prisoner records. In order to identify this type of specific information, we would be required to manually review a large number of files” and that it would not be “an appropriate use of our publicly funded resources”.
    • In response, Sophie Buchanan specifically requested the number of “transgender” flags affixed to individual prisoner files as required by Prison Operations Manual M.03.05.01.05, which states:
      • “The custodial systems manager or on-call manager must: a) update IOMS with “Transgender” Alert, and b) record in the Alerts Comment Box the decision on initial placement and all the information that was available to inform that decision.”
    • and that if DoC deemed this once again too difficult, that individual prison managers (or equivalent) give an estimate of the number of trans and intersex prisoners in their individual facilities. This request was made on the 17th of August and it is my understanding that DoC have a month to legally respond. They have not yet.
  • June 20th: “Conditions of segregation in prisons
    • This was another simple request:
      • “please go into detail about the conditions of segregation in New Zealand prisons. If this request is too general, please specifically explain the conditions under which someone would be held who was considered by themselves and/or prison staff to be at risk from the mainstream prison population.”
    • Corrections extended their due date for this request by an additional 20 working days, then responded. They outlined two forms of protective segregation, Directed Segregation, where a prisoner is placed in segregation when the Prison Director fears for their safety and kept in segregation until the Director no longer has this fear, or when three months is up, at which point the decision must be reviewed by a Visiting Justice. The second form is Voluntary Segregation, in which a prisoner fearing for their own safety is placed in segregation for protection. Corrections states that prisoners in either directed or voluntary segregation are usually permitted to mix freely with other segregated inmates, and that the vast majority of prisoners are segregated at their own request. However, Corrections then refused to respond to the specific questions of the request, stating that
      • “The Department does not compile or collect data on the segregation of prisoners due to their sex, gender, or sexuality.”
    • The Department did provide numbers of how many prisoners are segregated: in June 2015, 96 inmates are in directed segregation and 2169 are in voluntary segregation, for a total of 2265.
  • June 20th: “Number of prisoners currently segregated due to sex/gender/sexuality
    • Corrections have entirely ignored this request, sending zero responses even after two follow-up emails from Sophie. This request is legally long overdue and is eligible for a complaint to the Ombudsman.
  • June 20th: “Number of appeals against prison placement to date
    • This is possibly the most frustrating request and response. Sophie was very specific in her request, asking for
      • “the number of appeals against prison placement that have been made to the Chief Executive of the Department of Corrections to date under the 10 February 2014 amendment to the Corrections Regulations 2005″
    • as well as any documentations or guidelines referred to in the decision making process. It’s important to note the request to the CE of DoC as well as the specific amendment, because DoC ignored these details to totally dodge the question.
    • Corrections once again extended the deadline by 20 working days. They then responded by totally ignoring the specific question, talking about an entirely different policy, the Prisoner Placement System and a new facility in South Auckland. They also stated that no appeals have been made in reference to this policy and facility. No Pride in Prisons is in contact with a trans woman in a men’s facility who has requested a transfer and been waiting two months, so it is clear that this response is not related to the information request.
    • Sophie Buchanan responded to this question-dodging by pointing out their failure to comply:
      • My June 20th 2015 request for the “number of appeals against prison placement that have been made to the Chief Executive of the Department of Corrections to date under the 10 February 2014 amendment to the Corrections Regulations 2005” and their outcomes was referring to section M.03.05 in the Prison Operations Manual, which was put in place on February 10th, 2014, and regulates the placement and movement of transgender and intersex prisoners between facilities. The response I received, after 55 days, seems to refer to a completely different policy, the Prisoner Placement System which takes place at Auckland South Corrections Facility.

        Therefore I wish to clarify: under the Official Information Act, please disclose the number of appeals against prison placement that have been made under section M.03.05 in the Prison Operations Manual; that is, how many transgender people have requested to be moved to a different facility under the Department of Corrections’ purview for reasons of sex/gender. With respect to the privacy of the individuals involved, please also provide the outcomes of those appeals, i.e. the number of successful movements or refusals. Please include any documentation or guidelines consulted by the the Department in the process of making such decisions, and where possible please give details such as the nominated gender of the inmates and the facility they were in/requested to move to.

    • This request was made on the 17th of August; Corrections have not responded yet.
  • August 14th: “POM M.03.05.Res.01 Schedule of Serious Sexual Offences
    • I put this request in for Correction’s list of what qualifies as a “serious sexual offence” that renders a trans person ineligible to be transferred to the correct facility. Resources 2 and 3 were available on the site, but this was not. Just checking now they have made it available, but have not responded to my request.
  • August 21st: “Requests for Prison Transfer for Transgender Prisoners
    • Another NPIP member, Tim, asked for details on transfers: how many have been made, how many are pending, how many have been accepted and rejected, and how long the average waiting time is. Corrections are legally required to respond to this request by September 18th.

Overwhelmingly, Corrections’ attitude has been one of silence and evasion. As Emilie says on twitter: “Corrections is actively smokescreening all attempts to actually check if they’re housing trans ppl safely. What are we meant to conclude from this behaviour other than that they have something to hide? like, massive human rights abuse, perhaps? In her letter to No Pride In Prisons, Jade Follett said she applied for transfer in June. As of 31 July [note: as at 21 August this is still true], she is still in a men’s facility. To be clear: The only data we have on Corrections treatment of trans inmates shows that they ARE NOT reassigning us to the right facilities. if this was not the case, Corrections would be leaping to demonstrate that. Instead they are actively obstructing all efforts to check. So what are they hiding? From the context we can only conclude a massive failing to implement policies designed to protect trans safety.”