Corrections is failing to follow its own protocols on transgender prisoners and, in doing so, may be putting their lives at risk, say advocates for transgender prisoners.
Though the Department has policies in place to try to protect transgender prisoners, advocates say that some inmates seem to be exposed to dangerous conditions.
Last month, an inmate at the Serco-run Auckland South Corrections Facility in Wiri was allegedly sexually assaulted.
A cell block at Auckland South Corrections Facility. Photo: RNZ / Kim Baker Wilson
No Pride in Prisons, a group that advocates for the safety of trans or queer prisoners, has been in touch with the inmate's family and one of her close friends.
They said that she was a Maori trans woman prisoner, who had elected to go into protective segregation for her own safety, but spokesperson Kiran Foster alleged the prisoner was moved from segregation into the mainstream, where she was assaulted.
Kiran Foster (right) at a No Pride in Prisons rally. Photo: Supplied/No Pride in Prisons
"She was attacked physically by seven men. [Corrections] evaluated her safety after that and locked her in with a male inmate overnight."
It was while locked in the cell that she was sexually assaulted, they* said.
"She's doing okay at the moment, and being very brave."
Mx* Foster said the prisoner had written to No Pride in Prisons and thanked them for speaking out for her "so our sisters don't have to go through this."
They said she should never have been placed in a men's facility or moved into the mainstream from segregation.
Whangerei lawyer Kelly Ellis, who frequently represents trans clients, said Serco must have known the inmate was transgender.
"News reports indicated she was on 'hormones'. As a prisoner, her health care is provided for by Serco, including, one assumes, her prescriptions," she said.
Corrections said it was unable to comment on individual cases, and that the case was under police investigation.
What are the rules?
New procedures introduced at the end of last year were designed to "provide flexibility" in determining which prison was most appropriate for transgender inmates.
Previously, the only people recognised as transgender were those who had had gender reassignment surgery, said Ms Ellis.
"Only those people could go to the prison that matched their gender. It meant that trans women, who mostly can't afford surgery (or don't want it), were put in men's prisons," she said.
"There was also a policy which stopped people transitioning while in prison. The policy said they weren't allowed to initiate hormone treatment."
Now, when inmates arrive in prisons, staff are supposed to tell their manager if they have any concerns about a prisoner's sex and whether they could be in the wrong prison for their gender. The sex on the prisoner's birth certificate is supposed to guide them.
Corrections released an eye-wateringly complex flow diagram, designed to help staff work through the correct placement for transgender inmates, with reference to their health and safety and birth certificates.
Kelly Ellis, a Whangarei barrister and advocate for trans rights. Photo: Supplied
Ms Ellis said that the change in procedures was a victory, but that the new processes weren't being applied properly - and that if they had been, the Wiri inmate would never have been put in a men's prison.
"The rules say that if Corrections believe that a person is transgender, then they should begin the process of determining whether the prisoner should be put in a prison that matches their gender.
"The process can either be initiated by the prisoner or the prison makes that determination. If they suspect that a prisoner is transgender, then it's up to them to assess whether they should moved."
"It seems that these regulations, which should have fixed them - ultimately Corrections are not following the rules."
Corrections' protocol says that it is led initially by the sex listed on an inmate's birth certificate, allowing transgender prisoners who have their documentation up to date to go directly into the correct prison for their gender.
But Ms Ellis said that changing the sex on one's birth certificate was out of reach for many transgender prisoners. When changing the sex on her own birth certificate, she needed two specialist reports from doctors, twelve weeks of counselling, a court appearance, and sufficient medical evidence, all at her own expense. Ms Ellis said this was not a feasible option for many people, especially those who wound up in prison.
"Most people who end up in prison have usually got there because of very challenging socioeconomic circumstances - jobs are very difficult to get for transgender people."
Still, inmates who have not changed their birth certificate, do have the option to apply to move to a prison that manages inmates of their gender.
In a statement to Radio New Zealand, Corrections' deputy national commissioner Rachel Leota said that as of 7 October, there were 20 transgender prisoners. Of those, five had successfully applied to be moved to a prison for a different gender. Another applied but was unsuccessful.
"Please note, some transgender prisoners do not want to apply to transfer," she wrote.
But Mx Foster said the system to transfer, while it existed, was not well-publicised.
"It's really alarming - trans people in prisons are unaware that the system even exists," they said.
Inmate Jade Follett, who is a trans woman, was held in the men's only Rimutaka Prison in Wellington. After the procedural changes, she put in an application, in June 2015, to move prisons, but by the end of August had still had no response.
After being contacted by No Pride in Prisons, Green MP Jan Logie wrote to Corrections Minister Sam Lotu-liga detailing the group's concerns for Follett's safety.
In his reply, Mr Lotu-liga wrote, "[Her request to move prisons] was given to a Principal Corrections Officer who subsequently went on leave. I have been advised by my Corrections Officials that this letter does not appear to have been forwarded to prison management for processing."
Corrections minister Sam Lotu-liga Photo: RNZ / Alexander Robertson
No Pride in Prisons said at the time they believed she was in "very real danger" in the men's prison, which led them to start a hunger strike.
Three hours into their strike, Follett was moved to a women's prison. Corrections later issued an apology for the delay.
'Ultimately it proves to be solitary confinement'
Trans prisoners, who fear sexual or physical assault, often choose to be placed in protective segregation, as the alleged sexual assault victim had been, said Mx Foster.
But while that option is open to them, Ms Ellis said she had visited clients in Mt Eden and other prisons, and that protective segregation could have a serious impact on inmates' mental health.
"For many, that ultimately proves to be solitary confinement," she said.
Trans woman Daytona Haenga was held in the all-male Hawke's Bay Regional Prison for three months before her trial for theft last week. Her stand-in defence counsel, Elliot Lynch, said following an "incident", she had had to go into protective segregation.
Ms Ellis said such instances were very worrying.
"If the answer is, 'We've got a transgender prisoner and we're going to protect her by putting her in solitary confinement' - well, that's a death sentence for some prisoners."
She said that while she didn't know of any instances of trans prisoners committing suicide - although until two years ago, they would not have been recorded as being trans - there were documented cases overseas.
"I know that sounds extravagant, but ... solitary confinement is very tough on people. It's used as a means of torture and punishment. While that might not be the intention here, it's the reality for those forced to endure it."
She said that an amendment to include transgender people in the Human Rights Act would make it easier to lobby for prisoners. The Act prohibits discrimination on the grounds of marital status, sex, illness, employment status and sexuality, but she said that the government had said it would not make provisions for transgender people.
"For trans people like me, we feel like society has rejected us, our government is rejecting us - we don't have a place in humanity, according to this government."
Finding a solution
Ms Ellis said that Corrections did not need to make new rules, but simply to follow the ones it already has.
"Corrections are making rules faster than they can follow them - this strikes me as an easy thing to sort out, but there's no will," she said.
However, Corrections said it was sensitive to the needs of transgender prisoners, including the issues surrounding their placement and safety.
No Pride in Prisons said Corrections was clearly not ensuring the safety of trans women.
The organisation is calling for people to get in touch with Corrections about their policy around trans prisoners and have requested that Corrections release a public statement about the alleged assault in the prison at Wiri.
They want Corrections to reform its initial gender placement policy so that they assess individual inmates personally, rather than relying on their birth certificate and requiring them to apply to transfer to a prison for their preferred gender.
It is hosting a public 'Call-in to Call Out Corrections' campaign today, asking the public to contact Corrections with their opinions on the policy surrounding trans prisoners.
*Kiran Foster uses the gender-neutral pronoun 'they' and the title Mx.