By Rachael Wong
ABC’s Background Briefing has done an investigation on transgender women in men’s prisons. According to the investigation:
Experts estimate there are up to 400 trans and gender-diverse people in prison cells around Australia right now.
They are often assessed and housed inappropriately, which can mean they are placed in areas they're not safe in, such as trans women being held in men's prisons.
It's a dangerous situation for many and research suggests trans prisoners are more likely to be physically and sexually assaulted and verbally harassed by other inmates or staff.
The investigation focuses particularly on the story of trans woman Mara Ellis, who was sent to a male prison in 2018. “Then 22-years-old, she spent more than four months in Western Australia’s notorious Hakea Prison after assaulting her partner and two police officers.” The investigation states that Mara spent more than three months in solitary confinement and was sexually assaulted once moved into the mainstream male prison.
Each state has different policies around which jail trans prisoners are sent to. NSW, Victoria, the ACT and Tasmania have a ‘self-identification policy’, meaning that prisoners are meant to be placed in a facility based on how they identify, unless there are safety concerns or doubts around the authenticity of the prisoner’s gender identification. In Queensland, the Northern Territory and South Australia, the policies are not straightforward and placements are considered on a case-by-case basis. Western Australia does not have a policy on where trans prisoners should be placed.
There are examples of alternative models in the US which separate out trans women from other prisoners and have led to reduced incidences of physical and sexual violence against those inmates. However, the Chairperson of the NSW Trans and Gender Diverse Criminal Justice System Advisory Council, Kaz Zinnetti, has said her preference is for them to be placed in women’s prisons. She believes that “separate facilities to accommodate trans and gender diverse individuals potentially places them at risk of further stigmatisation and discrimination.”
No one should be subject to physical or sexual violence in prison, or indeed anywhere else, and everything possible should be done to prevent such violence from occurring, particularly against vulnerable minority populations like trans women.
However, while placing trans women in female prisons may provide them with a safer environment, this unacceptably exposes women in those prisons to increased risks of harm from inmates who are biologically male. In other words, the upshot of making things safer for transgender inmates is to make them more dangerous for women.
This is not to say that every trans woman prisoner would perpetrate violence against fellow female inmates, but that the general disparity in size, strength, and both physical and sexual aggression between biological men and women, inevitably puts women sharing a prison with trans women (i.e. biological men) at greater risk.
You only have to look at the lived experiences of women being sexually assaulted by transgender prisoners to know that housing trans women in female prisons is not the solution.
Take for example the two women inmates who were sexually assaulted by transgender prisoner and convicted rapist Karen White in a UK female-only prison in 2018, or the recent story of a female inmate from Illinois who has claimed in a lawsuit that she was raped by a transgender inmate. There have also been reports of female prison officers being raped by transgender inmates.
Recent figures from the UK show that transgender prisoners are five times more likely to carry out sex attacks on inmates in women’s prisons than their female counter-parts.
Regarding the story of trans woman Mara Ellis in its investigation, ABC Background Briefing has asked “why was this woman locked up in a men’s prison?”. The reality is that while self-identifying as a woman, Mara Ellis is biologically speaking a man, and a violent man at that. It is entirely inappropriate that such prisoners are housed in women’s prisons alongside vulnerable female inmates.
That being said, the current recourse to prolonged solitary confinement as a protective mechanism for trans women prisoners is inhumane and according to the UN, may amount to psychological torture. The ABC investigation shows that more urgently needs to be done to ensure the safety and wellbeing of prisoners like Mara, who are more vulnerable to violence in men’s prisons – but not to the detriment of women.
Rachael Wong is the CEO of Women's Forum Australia