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.”

A Cult of Representation: Ignoring Harmful Ideologies in Favor of Queer Rep

Written in Oct 2015 for a Sociology of Gender paper at the University of Auckland

In her article on lesbian pulp novels and US lesbian identity, Yvonne Keller argues that academia and queer history have mistakenly ignored lesbian pulp novels published in the 1950s and 1960s due to what is viewed as a problematic nature. She argues that these novels, though typically written for and marketed to heterosexual men, provided accessible representation for lesbian women who otherwise would never see themselves in media, and that the novels provided a means for lesbian identity formation (Keller 2005). Today, I would argue, we have the opposite problem: a cult in which representation reigns supreme, obliterating all other critical analysis. Shows like Glee, The L Word, and even American Horror Story are lauded for their representation of queer and transgender characters, while critiques of the shows and the way they reify harmful norms and ideals fall to the wayside.

In Sarah Warn’s introduction to Reading the L Word we see a struggle with representation analogous to Keller’s argument about pulps: when you’re not represented, when you don’t see yourself in the media you consume, you will grab and hoard any representation that exists. Lesbians in the 1950s and 60s consumed lesbian pulps even though they were largely marketed at straight men and filled with generally negative content: women struggling with their identities and not getting a happy ending. In the early 2000s, queer representation on television was sparse: Warn discusses the sparse queer moments in television in her introduction. So when The L Word (then called Earthlings) was announced, it was big: “Someone was actually creating a show about lesbians?” (Warn 2006). It wasn’t just that The L Word had a singular lesbian character or issue or storyline, but it was about lesbians. Multiple lesbian characters who the show revolved around, who would interact with each other and have relationships and problems that weren’t just “I’m a lesbian”. As Eve Kosofsky Sedgwick wrote very early into the show: “The sense of the lesbian individual, isolated or coupled, scandalous, scrutinised, staggering under her representational burden, gives way to the vastly livelier potential of a lesbian ecology” (Sedgewick 2004). Notably, just like the pulps of the mid-20th century, part of The L Word’s draw to network Showtime was its presumed appeal to straight men.

As The L Word aired and progressed, it grew immensely popular in the lesbian community. AfterEllen.com’s success is largely due to it and its fanbase; Autostraddle has countless “Top [X] Moments in The L Word” lists; and it’s difficult to find a social circle of lesbians who haven’t seen every episode. And not without reason: it was a long-running show with a lot of representation for lesbians – unfortunately, only a very specific subset of lesbian; the main characters are cis, wealthy, ‘lipstick’ lesbians. There is little diversity in The L Word and little sensitivity to other minority groups: trans women either don’t exist or are made fun of, and the trans masculine representation is supremely flawed.

However, it’s been 11 years since The L Word began airing and 6 since it finished: surely the state of queer representation has improved, right? It’s certainly spread – it’s a lot more common to see queer characters on shows (though usually one at a time), and shows like Glee have become the younger generation’s The L Word, with more than one queer character/issue/plotline at a time. The uncritical attitude toward representation hasn’t shifted in the same way: representation trumps other issues.

On the surface, Glee sounds ideal: a queer character in a cast of diverse ethnicities right off the bat, with more and more introduced throughout the seasons, including a Black trans woman by the third season. Glee has been lauded by media and thoroughly embraced by youth, queer or otherwise, as an example of a progressive show with good queer representation. Unfortunately, critical analysis of the series reveals its normative agenda and ideology.

Katherine Wolfenden’s article on Glee’s stereotypes and neoliberal flexibility provides a succinct and powerful summary and analysis of the problems with Glee as a show overall: specifically the way the show fails to challenge dominant thinking, social norms, and harmful ideologies. Glee is guilty of not only failing to deconstruct harmful systems like masculinity, but also of strengthening them by utilising lessons of acceptance and diversity to build these ideals into the hegemonic system (Wolfenden 2013). She does this using Robert McRuer’s notion of neoliberal flexibility, a model under which media, corporations, and normative majority populations can benefit from diversity, and under which minorities are tolerated and worked with instead of demonised. This model of flexibility does not guarantee positive and unproblematic representation, however: McRuer points out that in many representations

“disabled, queer figures no longer embody absolute deviance but are still visually and narratively subordinated, and sometimes they are elimated outright… heterosexual able-bodied characters in such texts work with queer and disabled minorities, flexibly contracting and expanding, while queer, disabled minorities flexibly comply” (McRuer 2006, 18)

Wolfenden sums it up nicely: “queer and disabled people appear in the media… so long as they are still subordinate to able-bodied, heterosexual characters” (Wolfenden 2013). In the case of Glee, it’d be easy to assume the minority characters on the show exist purely to provide a foil to the normative majority characters.

The first major example, used by Wolfenden in her article, is the treatment of Kurt, the effeminate gay boy in the show from the start, by the other characters – especially by the jocks, who perform hegemonic masculinity. Throughout the show Kurt is treated as one of the girls due to his sexuality and the effeminate masculinity he performs (both of which are implicitly equated by the show, another harmful societal norm reified but ignored in the desperate praise of both Kurt and his actor, Chris Colfer). Kurt’s brother, Finn, is a normative, heterosexual teenage boy: he’s the quarterback and is dating the HBIC-trope cheerleader. Finn is regularly called upon to protect Kurt, who is written to assume the role of the fragile, vulnerable, and effeminate gay boy, and when Finn inevitably gets past whichever societal barrier is preventing him from standing up for Kurt, he learns how to be a better man: not by example, but by protecting Kurt in the same way he would protect his girlfriend. This is made absolutely clear by his post-“manning up” speech performance of Bruno Mars’ Just The Way You Are, in which he sings both to Kurt and to Quinn, his girlfriend.

Two things are happening here. Firstly, the relationship between Kurt’s sexuality and his gender performance is emphasised and naturalised. Wolfenden points out that “Kurt may not be a manly man, but he can be understood and accepted as a functioning female” (Wolfenden 2013). Kurt cannot be accepted as a masculine gay man, but when he becomes one of the girls, he receives the acceptance and protection of his normative masculine brother. Secondly, and as a result of this, the show’s model of masculinity is shifted to include a form of tolerance – but a limiting and unchallenging one. Finn’s masculinity includes protecting Kurt – but Kurt as a gay man with an effeminate performed gender, as one of the girls. This leaves harmful notions of the sex/gender binary, of heteronormativity, of toxic masculinity, and of the exclusion of minorities untouched, unchallenged. It reifies the assumption that gay men are inferior, unable to perform masculinity appropriately, and that they are weaker and deserving of protection in the same way that women (who are also portrayed as inferior under this model) are.

The second major example of problematic representation involves the character of Unique Adams, a Black transgender woman introduced in season three. Right off the bat this character upholds harmful societal ideas about trans women: she is played by a cisgender male actor, an industry standard that leads to inaccurate and harmful portrayals, makes it extremely hard for trans women actresses to get work, and relies on the popular notion of the trans woman as “just a man in a dress”. Interestingly, Glee showrunner Ryan Murphy is also guilty of this in one of his other shows, American Horror Story: Freak Show, which features a transgender woman playing a ‘giant woman’ in the freakshow, the part of which was originally cast for a cisgender man (Leah 2014). The introduction of Unique was a step forward after no trans representation and the use of a transmisogynist slur in a season two episode about Rocky Horror. However, Unique’s character has very little to her, and simply becomes a foil for the other characters via the neoliberal flexibility discussed above, and a shell through which the show can explore gendered and race based discrimination (Sandercock 2015).

In her debut episode, Unique meets with Kurt and Mercedes, another Black woman. In this interaction and throughout her appearances, Unique is portrayed as aligned with and between these two characters – she is queer (by means of her gender, as she is straight – though Kurt immediately misassumes her to be a gay cisgender man) and Black. This is highlighted further as characters point out their similarities: one character can see no difference between Mercedes and Unique; another calls the two very similar nicknames; and Unique herself refers to herself as a love child of Mercedes and Kurt.

Keegan points out that transgender representations on screen (I would argue elsewhere, too) is reduced to emotive affect: “feeling bad” (Keegan 2013). This is necessary, under neoliberal flexibility, to represent queer characters while taking away their ability to embody deviance and thus challenge norms. McRuer discusses this necessity in the context of compulsory able-bodiedness:

“The culture asking [such questions as ‘wouldn’t you rather be hearing?’] assumes in advance that we all agree: able-bodied identities, ablebodied perspectives are preferable and what we all, collectively, are aiming for. A system of compulsory able-bodiedness repeatedly demands that people with disabilities embody for others an affirmative answer to the unspoken question, ‘Yes, but in the end, wouldn’t you rather be more like me?’” (McRuer 2006, 9)

This, I would argue, is the source of the ‘tragiqueer’ trope that pervades queer representation and harkens back to the lesbian pulps and earlier: queers in media don’t get happy endings, they don’t end up together, happily; they generally end in the death of at least one character. By representing queers as doomed to unhappiness, dominant forces prevent queer minorities from being able to challenge norms or provide an alternative to the hegemonic system.

Glee’s representation of Unique falls into this trope. Her storylines revolve around her trans identity and how it harms her or sets her back – the gendered school bathroom access storyline in season five gained positive media attention, but involved Unique being subject to transmisogynist violence which, in the real world, typically ends in a physical violence, often murder. The storyline is resolved when Unique is given access to a private faculty bathroom, but such a resolution only others and marginalises her further, instead of addressing the clear culture of transphobia and violence at the school.

One of Unique’s other major storylines involves romance – a topic that is typically a dangerous site for positive representation. Traci Abbott points out how “romantic contact stifled because the filmmaker fears the audience will read the trans character’s gender identity as inauthentic and the romance as transgressive” and that depictions of romance involving a trans character can “undermine the otherwise positive portrayal of the trans experience and reaffirm the dominant viewpoint that authentic gender is dependent upon birth sex rather than gender identity” (Abbott 2013, 34). It is worth noting that attraction of any kind to a trans person is fraught in our society, and the ‘deception’ that we seem to inherently embody is still grounds for the justification of murder in forty-nine out of fifty US states.

Unique’s romance plot is already housed in a tense context, then, and it sadly does nothing to challenge any of the ideological problems with the context. She plays the inaccurate trope of deceptive trans woman, pretending to be a thin, white, cisgender woman online in order to talk and flirt with a classmate, Ryder (another footballer), online. Via the persona of Katie, Unique helps Ryder to change his views towards her as well as his reliance on essentialism, an ideology inherently harmful to transgender people. However, as Sandercock points out, both Unique and ‘Katie’ express these views to him, but it is only Katie he considers seriously. This is as far as Unique and Ryder’s relationship progresses, with no on-screen intimacy involving Unique, only reifying Abbott’s trans/romance dilemma. Unique’s attempt at romance reinforces the trope of trans woman as deceptive, does not challenge heteronormative assumptions about sexuality and gender, and while it highlights Ryder’s racism in listening to Katie but not Unique, it does little further.

It’s easy to understand the urge to reach out and grab on to whatever representation you can find. Growing up with no reflections of yourself makes queer and trans identity formation hard. However, the uncritical cult of representation that we see in public discourse today is harmful. It’s all well and good for cis white queers – representations of them are less and less rare. But those representations are all too often paired with harmful representations of those marginalised within the queer community. Those representations are all too often utilised by the normative majority to justify their own positions. Perhaps what we need is a new L Word; one filled so thoroughly with minority representations that we no longer are the minority; one that does not utilise our representations to justify harmful normative ideals.

Bibliography

Abbott, Traci B. “The trans/romance dilemma in Transamerica and other films.” The Journal of American Culture, no. 36 (2013): 32-41.

Keegan, C.M. “Moving bodies: sympathetic migrations in transgender narrativity.” Genders, no. 57 (2013).

Keller, Yvonne. “”Was It Right To Love Her Brother’s Wife So Passionately?”: Lesbian Pulp Novels and US Lesbian Identity, 1950-1965.” American Quarterly 57, no. 2 (2005): 385-410.

Leah, Thomas. ‘AHS: Freak Show’ Transgender Actress Erika Ervin Is Changing Things on Television in a Big Way. 2014. http://www.bustle.com/articles/43406-ahs-freak-show-transgender-actress-erika-ervin-is-changing-things-on-television-in-a-big-way (accessed September 2015).

McRuer, Robert. Crip Theory: Cultural Signs of Queerness and Disability. New York: New York University Press, 2006.

Sandercock, T. “Transing the small screen: loving and hating transgender youth in Glee and Degrassi.” Journal of Gender Studies 24, no. 4 (2015): 436-452.

Sedgewick, Eve Kosofsky. “‘The L Word’: Novelty in Normalcy.” Chronicle of Higher Education 50, no. 19 (2004): B10-B11.

Warn, Sarah. “Introduction.” In Reading the L Word: Outing Contemporary Television, edited by K Akass and J McCabe, 1-8. London: IB Tauris, 2006.

Wolfenden, Katherin. “Challenging Stereotypes in Glee, or Not? Exploring Masculinity and Neoliberal Flexibility.” Student Pulse 5, no. 2 (2013).

Ministry of Health Release Information About GRS Funding

The Ministry of Health this morning responded to an Official Information Act request made in August by A.D Tait requesting “any correspondence, briefings, summaries or presentations related to changing the current level of funding for Sexual Reassignment Surgery (SRS)” as well as “any assessments, briefings or correspondence between the Ministry of Health, DHBs and overseas providers of Male-to-Female SRS, in regards to sending patients overseas for treatment,” as discussed in the Ministry’s response to another OIA request in April.

The outlook is bleak. First off, the Ministry is withholding three emails (falling under the second half of the request, about overseas treatment) between them and ‘the DHB’ on the grounds of “maintain[ing] the effective conduct of public affairs through the free and frank expression of opinions” (OIA Section 9(2)(g)(i)). What does ‘free and frank expression of opinions’ mean in this context and why do they need to be withheld? Considering Andrew Little and co’s comments earlier this year and the fact that in the Ministry’s own communications released in this OIA they refer to trans surgeries as ‘elective’ I don’t have high expectations. Hopefully a complaint to the Ombudsman gets them to release those emails, or at least give some detail as to the content of them.

The first email in the release is to the Chairperson of the Health Select Committee, Simon O’Connor, from Dr Don Mackie, Chief Medical Officer, about the petition recently delivered by Tom Hamilton and 435 others. The first section is basically a summation of how crap we have it – services aren’t standardised, they’re sparse, and we’re often forced into the expensive private sector for what should be basic healthcare. The second talks about surgeries, overseas options, and the waitlist, and is basically what we already know – 73 people are on the combined AMAB/AFAB waitlist; 5 on the AMAB waitlist who have been already approved will be sent overseas “as soon as the Ministry can confirm an overseas provider”. The final section admits that “there has been little consideration of the provision of a comprehensive gender dysphoria service nationally” and “acknowledges that it is time to review the numbers publicly funded for GRS, and how these may be managed in a timely manner” (though it’s worth noting that in a later email in this release they state they have no timeline for this review).

The second email is, quite frankly, pretty horrific. It’s from a surgeon in Australia (Brisbane from the looks of it) who the MoH are considering as their overseas provider for AMAB GRS. He spends 99% of the email talking about his AFAB GRS experience and practice, stating only that he is “interested to expand this service for MtF [sic] patients at a later stage”. He makes zero mention of any experience performing AMAB GRS. If this is the Ministry’s choice, how can they justify it? A surgeon with no experience who currently doesn’t even perform the procedure they’re looking for? Are they willing to accept an even longer wait for trans fem people? An even longer wait for those 5 people already approved waiting for a provider?

The last email from MoH is in response to a doctor requesting information and clarification for a client about the waitlist and its criteria. The client made a complaint about the “lack of action on making a referral” for GRS. The doctor asks:

“I am aware that the only surgeon in NZ performing this surgery has now retired. In this context, can you please tell me exactly what level of gender reassignment surgery is currently funded via the SHCTP [Special High Cost Treatment pool]? Can you also tell me how you manage the referrals for such surgery and the large waitlist that I suspect must inevitably result. Assuming we are funding some small number of surgeries (in Australia perhaps?), are we able to share what number of people are already on a wait list for surgery so that a newly referred person knows that the wait will be a very, very long time and is [sic] public health funding is probably not a realistic solution for them.

“I am keen and it would be very helpful to be able to give this client accurate information and a realistic account of what she can expect from the public health system, assuming she meets all eligibility criteria (which I’m not confident she does anyway).”

Before even getting into the Ministry’s response the attitude towards GRS and trans healthcare in this email really unsettles me. The eligibility criteria referenced is pretty fucked – requiring 2 psychiatric reports, one psychologist report, and “demonstration of progress in transition” including “dealing with work, family, and interpersonal issues as well as significant improvement/stability in mental health”. Aside from the gatekeeping and hoop-jumping required by that many psych reports (as Megan says on twitter, does any other population need 3 psych reports to get on a funding waitlist?) the “demonstration of progress” shows a real lack of understanding as to trans experiences. My mental health hasn’t improved after coming out and starting transition, and it’s not because transition isn’t right for me. My MH was bad before, it’s bad now. While for the most part dysphoria is lesser and HRT has helped with gender issues, being an out trans woman means I have to face transmisogyny and violence on a daily basis. Show me any other population that faces daily aggression, micro and macro, without that having an impact on mental health. Same goes for “dealing with work, family, and interpersonal issues” – what about those with unsupportive families? Unsupportive workplaces? A social circle that refuses to accept them? What happens to those who end up isolated and alone after coming out? Does this render them ineligible for what is a lifesaving surgery?

Then there’s the super cavalier attitude to how long the waitlist is – realism is good, most of us already know what the wait will be like, but this email shows little to no concern as to this wait and the impact it has.

The response from the Ministry to this is the one where they talk about the timeframe for the waitlist review – “due to the increasing W/L we are looking to review these numbers, but no time frame yet”. Interestingly, they also state that they “should be able to send the first of the W/L off to the preferred provider this year”. This doesn’t align with the single provider they claim to have contacted (seeing as the scope of the request included any correspondence with overseas providers) who doesn’t even perform the procedure yet and likely has zero experience. Unless contact with another provider is in the three emails they withheld (not likely, considering they state these emails are between MoH and DHB) this timeframe seems unlikely, if not irresponsible.

At the very least the Ministry recommend to “always inform the patient fully [about waitlist times] and place them on the W/L anyway”.

Overall, the information included in this release is disappointing at best, worrying at worst. They seem to have made little progress as to an overseas provider, have no timeframe for reviewing the forty year long wait list, and discuss an overzealous, gatekeeping, and misinformed set of criteria for funding. The Ministry of Health need to do better, but while attitudes in this country – both public and political – consider GRS ‘nutty’ and ‘elective’ I don’t hold much hope. I don’t think I’ll ever get the surgery I need, publicly or privately.

Update 30/09: Thanks to some rumours from Oz and some quick detective work (squinting real hard at redacted names in their OIA release and cross-checking where he studied) we’ve found the name of the surgeon MoH are in touch with in Brisbane – Hans Goosser, a urologist with special interests in men’s health, erectile dysfunction, male infertility, and prosthetic surgery. He currently only sees ‘FtM’ patients but plans to expand – we’re still waiting to hear back from MoH about how this fits with their “later this year” timeline for sending ‘MtF’ patients off for surgery, or why this is the only surgeon they claim to have contacted about this.

NO PRIDE IN PRISONS: HUNGER STRIKE FOR JADE FOLLETT

Copied and pasted press release from No Pride in Prisons.

Transgender and queer activists are planning a hunger strike, demanding the transfer of an incarcerated trans woman to a women’s facility. Jade Follett is currently being held in the Rimutaka men’s prison, despite requesting more than two months ago to be transferred to a women’s prison.

According to the group, No Pride in Prisons, Jade is in a precarious situation. ‘We’ve received correspondence from Jade saying she requested transfer to a women’s facility in June, and has yet to see any action taken on behalf of the Department of Corrections,’ says spokesperson Jennifer Katherine Shields.

‘We are very worried about Jade. Although she’s a very strong woman, we know that a men’s prison is not a safe place for a trans woman.’

The group has pointed to a 2007 study which shows that trans women were 13 times more likely than the general population to be sexually assaulted in men’s prisons.

‘However,’ Shields says, ‘the reality of the problem for trans people in the New Zealand prisons cannot be fully known. Corrections refuses to collect and release adequate information about trans women in prison, despite numerous Official Information Act requests.’

‘We are also calling on Corrections to release information regarding the number of trans prisoners across the country, including what facilities they are being held in.’

The group has informed the Department of Corrections that if she is not moved before the 27th of August 2015, they will stage a hunger strike.

‘Everyone deserves to be treated with dignity. The fact that Corrections hasn’t done anything about this for two months shows their complete lack of respect for trans people.’

‘We are calling on corrections to immediately transfer Jade to a women’s facility for her to serve out the rest of her sentence.’

According to Movement 03.05.04 of the Department of Corrections’ Prison Operations Manual, all this requires is approval from the Corrections CEO, Ray Smith.

‘Ray Smith must give immediate approval for Jade’s transfer.’

Strikers include prominent community figures and advocates, such as Jennifer Katherine Shields, Emilie Rākete, Aaliyah Zionov, Chase Fox and others.

‘We will hold daily vigils on Auckland’s K’Road until Jade has been transferred.’

‘We will not allow corrections to continue its transphobic disregard of Jade’s safety.’

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.”

How Does Stats NZ Define ‘Gender Diverse’?

Earlier this week Statistics NZ released their new standard for collecting information on gender. I’ve already pointed out some problems in the standard, but more information has arisen.

The government-sponsored Encyclopedia of New Zealand, Te Ara, has a definition for ‘gender diverse’. It’s not good.

Te Ara lists as examples of gender diverse people:

  • transsexual people, a term most of the trans community does not identify with – and specifically transsexual people who are medically and/or surgically transitioning,
  • cross-dressers, who are cis and not trans,
  • intersex people, for most of whom intersex is not a gender identity,
  • Māori and Pacific gender identities, the one good thing about this list,
  • and drag kings and queens, usually cis people who are valued more highly than actual trans people.

If this is the standard for which ‘gender diverse’ in New Zealand is referenced back to, then Statistics NZ’s decision is even more harmful. We thought the standard would collect data on non-binary people but make it difficult for other trans people to identify themselves, but this list excludes massive swathes of the community, many of whom have it worst off. If this is what Statistics NZ means by ‘gender diverse’ then they are not going to collect data that accurately represents our experiences and our needs.

Statistics NZ’s ‘Gender Diverse’ Decision

Today Statistics NZ released their decision on creating a new standard for gender identity classification, including “gender diverse” alongside “male” and “female”. You’ll remember that they held extensive discussions with the community via loomio, but today, coincidentally timed, those discussions are no longer publicly available, and the loomio group that gender identity fell under, “ethnicity, culture, and identity” has been closed off. Luckily, I never turned off email notifications from Loomio, so I have most of the discussion archived in my inbox.

The original issue was one of potential confusion, and I’m glad to see that StatsNZ has got past that very very weak excuse. However, the standard they have developed is insufficient and ignores concerns voiced by the community in the loomio discussion process.

(image via GayNZ)

As you can see, this standard separates anyone who identifies as gender diverse from the cis population, only othering us further. As Megan pointed out on twitter, it will capture data on the non-binary population relatively well, but is insufficient for capturing actual data on gender identity overall. It also relies on terminology many in the community refuse to use – such as the typical and frustrating MtF/FtM. It leaves no space for trans women to identify as women, but instead as something Other that relies heavily on “born a man” rhetoric.

Kelly Ellis makes a relevant point on GayNZ: a binary trans woman may elect to tick ‘female’ to not Other herself or invalidate her gender, while someone who, for example, does not experience transmisogyny may tick one of the gender diverse options and thus “skew the picture of poverty that transgender people face.” Essentially, this system would require many of us to marginalise ourselves and our identities by selecting an Othered category in order for important data about our lives and experiences to be collected.

Duncan Matthews, General Manager of Rainbow Youth spoke in the discussion about the importance of accurate data:

duncan

[“A key thing that prevents organisations that are supporting gender diverse communities (RainbowYOUTH, Agender, Genderbridge, OUTLine, to name but a few) is a lack of nationally representative data on the gender identity of New Zealanders.

We have some nationally representative data from the Youth’12 report – where young people were asked the question ‘Are you transgender?’. This provides some information, such as 1.2% of high school students self identify as transgender. But does not provide a broader picture of the gender diverse community across all ages, and ‘transgender’ may not be a term all gender diverse people identify with.

Government organisations, such as DHBs, because of a lack of data around gender diverse people do not allocate funding to services for gender diverse people, and DHBs that are being progressive in attempting to provide services for gender diverse people struggle to determine the demand for the service they will receive. 

In short, until we collect data around gender identity, these populations will continue to remain invisible and not receive the services and support needed.“]

Another important point brought up in the discussion that has not been addressed by this classification standard is one of culturally specific identities. This is especially relevant considering the history of the settler state we live in and the impact colonialism has had on indigenous queer identities. Under this standard, non-Western identities are marginalised further and lumped under “gender diverse not further defined” or “gender diverse not elsewhere classified”. Kiran Foster said it better than I ever could in the discussion:

key

[“Aside from what everyone including myself has already said, I’ll speak here as a person of color and a migrant: I have lived experiences of gender systems and understandings of gender that are different from the pākehā one. Many of my friends are Māori and other people of color whose gender is, similarly, something not adequately documented by the current system or recognised in any way.

Especially as this relates to Māori, I feel that there is an obligation to expand the understanding of gender and the collation of gender data in order to more accurately represent the needs of the people that this colonist state has marginalised.

I don’t think the census can claim to have an accurate result if it does not account for this very fundamental way in which a lot of people of color are alienated and unable to discuss their experience of gender (which is so fundamental to our society), and I think it’s very important for basically every organisation which focusses on especially young people of color or queer people or other marginalised groups to have this information and know how best to support the demographics they are targetting.“]

These concerns all were brought up in the discussion thread and sadly seem to have been ignored. Statistics NZ, the media, and now also the NZ Human Rights Commission are all hailing this as a success, a world first. All this shows is that our concerns have not been heard. The standard, as far as I understand, has only been recommended to be included in the 2018 census (which is also when the next standard review is) so it’s likely it won’t be fixed and included properly until 2023 at the earliest. That’s another 8 years of potentially flawed and insufficient data – data that could save lives.

Update 7:00pm 17/07: Stats NZ have responded to GayNZ’s questions about inclusion in the census and more details on how the standard will be used: they are keeping very vague about its inclusion and say “public submissions on the topics for the 2018 Census closed on 30 June so Statistics New Zealand now has to assess all topics to see what should be included. We have criteria against which all topics are assessed, before testing, and then making a final decision.”

Stats NZ also states that this is a standard and not mandatory for people to use – “so we can’t say how people will apply it.” This leaves the standard open to harmful misuse or misinterpretation – but it may also lessen the harm if organisations allow for people to check multiple boxes in this question – being able to check “female”, “gender diverse not further defined,” and “transgender male to female” as I would. However this does not solve either the wording problems, the Othering problems, nor the problems of culturally specific identities.

Update 7.14pm: A friend just pointed out that StatsNZ’s questionnaire module document states “multiple responses are acceptable” in the standard requirements. StatsNZ also state that a write-in option is preferable, although not mandatory.

Statistics NZ has also confirmed that the loomio discussion is now visible again.

Update 7.49pm: The same friend has pointed out this section on a “synonym report”, which “lists all variations of gender identities, and popular and similar gender identity terms used by the population. This can include abbreviations, slang, and some common misspellings.” We are currently waiting on a copy of this report to examine its scope and see what it includes: my concern is that it will count many identity terms toward a simplistic umbrella such as “diverse”.