By Rachael Wong
Is the NSW Government trying to cover up – or at least minimise or deflect from – its policy on housing men in women’s prisons?
Yesterday, the Daily Telegraph and Sky News Australia reported on the story of double murderer Terry Mark Donai, a man who now identifies as a woman, and who wants to be transferred to a women’s prison more than 19 years into his 43-year sentence.
While Donai reportedly began taking cross-sex hormones a few months ago and adopted the name ‘McKenzie’, he has not undergone transgender surgery.
According to the news reports, Department of Communities and Justice officials have had the application from Donai since 2023, but security concerns and the “lack of precedent” for transferring someone who hasn’t had transgender surgery have stalled the application.
This story has surfaced just a week after sex self-ID provisions came into force in NSW under the 'Equality Act', which allow individuals to change their legal sex on their birth certificate with the bare minimum of safeguards (without surgery, as was required under the old law).
What I find particularly interesting (and frustrating), however, are the obfuscating comments from both Corrective Services NSW (CSNSW) officials and Acting NSW Premier Ryan Park.
Corrective Services NSW (CSNSW) comments
1. Transgender inmates are housed in facilities corresponding to their 'sex assigned at birth'
According to the Daily Telegraph, “All transgender inmates are housed in facilities corresponding to their sex assigned at birth”, which appears to be directly from CSNSW, as Sky News quotes them as saying “All transgender inmates are currently accommodated in facilities corresponding to their sex assigned at birth."
Asides from the ideological, nonsensical language, this is potentially misleading for two reasons.
First, it implies that CSNSW's default policy is that ‘transgender inmates’ are housed in prisons based on their biological sex. This is not what its most recent 'Classification and Placement of Transgender and Intersex Inmates' policy stated, which was that:
"A person who self-identifies as transgender has the right to be housed in a NSW correctional centre appropriate to their gender of identification, unless it is determined through classification that the transgender person should more appropriately be assigned to a correctional centre of their biological gender."
In other words, the default policy – even before new sex self-ID laws came into force last week – was that a transgender prisoner should be placed in a prison based on their gender identity. The policy makes clear that this is to ensure compliance with state and federal anti-discrimination laws.
I say ‘was’, as the policy curiously appears to have been scrubbed from the internet. A search for the policy online brings up a 404 ‘page not found’ error code.
However, having carefully reviewed the policy last year during debate on the sex self-ID provisions in NSW Independent MP Alex Greenwich’s so-called ‘Equality Bill’, I had a copy saved which you can view here. None of the other related transgender inmate policies appear to be online anymore either.
The second reason this statement is misleading, is it implies that that biological males are not, and have not, been housed in women’s prisons in NSW. However, we know from questions asked by NSW Independent MLC Mark Latham in May 2022, that at that time there were three trans-identifying male prisoners housed in women’s prisons in NSW. Trans-identifying male offender Evie Amati who attacked three people with an axe in 2017 also served time in a women’s prison.
According to the Daily Telegraph article, there are currently 50 inmates who identify as transgender inside the NSW prison system. In 2024, NSW Liberal MLC Susan Carter requested an update about the number of transgender inmates in NSW prisons, specifically the number of trans-identifying males in women’s prisons and vice versa, but was not given specifics.
2. The department has strict guidelines and processes to determine placement of transgender inmates
A CSNSW spokeswoman also told the Daily Telegraph that the department has “strict guidelines and assessment processes that determine the placement and management of transgender people in custody”.
“Individuals are assessed on a case-by-case basis, having regard to a range of factors including the nature of offence, their behaviour in custody and the safety of the transgender inmate and other inmates,” she said.
“A transgender inmate who makes an application to be placed into a centre of their gender are subject to rigorous assessment by a multidisciplinary team, which includes psychologists and Justice Health NSW staff.”
While the removed policy was somewhat confusing (due to potential errors), it appeared to be the case that much of these “strict guidelines and assessment processes” only apply to self-identifying transgender inmates, rather than ‘recognised transgender inmates’ who have changed their legal sex on their birth certificate. The policy provides that:
“A person who self-identifies as transgender has the right to be housed in a NSW correctional centre appropriate to their gender of identification, unless it is determined through classification that the transgender person should more appropriately be assigned to a correctional centre of their biological gender. The decision for this placement will be based on:
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- the nature of their current offence and criminal history (for example, violent and/or sexual crimes against women or children);
- custodial history (for example, previous management problems which impacted on the safety of other persons or the security of the correctional centre);
- perceived risk/s to the continuing safety of the transgender inmate.”
It also provides that:
“A recognised transgender inmate received into custody, who has identification proving such, is to be sent to a correctional facility of their recognised gender.”
As things currently stand, Donai would (or at least should) be subject to these assessment processes, as he is not a 'recognised transgender inmate', having not changed his legal sex to female on his birth certificate either under the old law (because it required transgender surgery which he hasn't had) or under the new law (as far as we know, but it is unlikely given the new law only came into force last week and the process is more stringent for inmates).
But going forward, will it really be that difficult for someone like Donai to change his legal sex under NSW's new sex self-ID law given the way in which government departments are beholden to gender ideology? As most people can now easily change their legal sex on their birth certificate (no surgery required), will the safety checks and balances noted by CSNSW still be meaningful? How could they be if a person can now be legally recognised as the opposite sex for all intents and purposes under the law, and is effectively a ‘recognised transgender person’ for the purposes of CSNSW policy (who must be treated as the sex recorded on their birth certificate)? Is this perhaps why a ‘page not found’ error now appears when trying to search the policy online? Is the reality of NSW’s new sex self-ID laws setting in and the NSW Government scrambling to hide it?
Acting NSW Premier Ryan Park’s comments
Acting Premier Ryan Park told the Daily Telegraph the transfer “won’t be happening”.
“This individual is convicted of murdering a woman,” Mr Park said. “I don’t find it acceptable, and I don’t think the community would find it acceptable.”
I don’t think the community would find it acceptable either, but that didn’t stop violent male offender Evie Amati from being housed in a NSW women’s prison. It also hasn’t stopped multiple male sex offenders from being housed in women’s prisons around the country, such as in Victoria and likely in the ACT.
Park’s indication that this man will remain in a male prison is good news, but his comments imply it’s obvious that violent biologically male offenders won’t be housed in a women’s prison. However, based on recent policy, and NSW’s new sex self-ID laws, it’s not obvious at all.
Yes, there is a more rigorous process for offenders who are already incarcerated (who are considered ‘restricted persons’ under the 'Equality Act') to formally change their legal sex under the new legislation, but according to CSNSW policy, a legal sex change isn't necessary for an offender to be placed in the prison that aligns with their gender identity – though based on what we currently know about the policy and the new law, it will make it easier. Moreover, the CSNSW's removed policy provided that:
"Recognised transgender, transgender and intersex inmates are to be managed according to their identified gender in all stages of incarceration to provide best practice, non-discriminatory, safe and secure management." (emphasis added).
What happens when a violent male offender has changed their legal sex before they are convicted or before they have committed a crime? When they are considered legally female under the new law? Would Park be able to say as confidently then that they won’t be housed in a women’s prison?
Given that Australian businesswoman Sall Grover is currently being sued for discrimination by a man who identifies as a woman for refusing him access to her female-only social app, the legal line between what were once male-only and female-only spaces is by no means as clear as the Acting Premier is trying to make out.
Of course, there may be a brand new policy that clarifies everything, and if so, I'd love to see it.
No men belong in women’s prisons
The reality is, that the reason we have single-sex prisons in the first place, and indeed any single-sex services and spaces, is to protect the dignity, safety and privacy of women.
Housing any man in a women’s prison – whether he identifies as a woman or not, and whether he has changed his legal sex or not – unacceptably exposes female inmates to increased risks of harm and trauma (many of whom have already experienced harm and trauma from men).
UK statistics show that trans-identifying male prisoners are five times more likely to carry out sex attacks on inmates in women’s prisons than their female counterparts. This is not something that should come as a surprise at all – we know that the vast majority of sexual crimes are committed by men. Male patterns of criminality – and women's relative physical vulnerability – do not change because the male perpetrator happens to be transgender. Gender identities do not rape women, male bodies do.
In overseas jurisdictions like the US and UK, there have been multiple cases where trans-identifying male prisoners were housed in female prisons only to sexually assault and rape female inmates (read our submission to the United Nations Subcommittee on the Prevention of Torture for more information on the harm posed by biological male inmates to female prisoners and prison staff). The sexual assaults sparked a policy change in the UK in 2023, which strongly restricted men from being housed in women's prisons.
But does a woman really have to be assaulted by a man in prison, sexually or otherwise, before we have safe, just, common sense laws and policies that ensure prisons are based on biological sex, and that no men are housed in women’s prisons either in NSW or any other part of Australia?
Politicians who really care about women's safety and preventing violence against women will treat this as a matter of utmost urgency, and will work to ensure that laws and policies, particularly Australia's Sex Discrimination Act and state anti-discrimination laws, are amended to clarify that it is not discriminatory to ensure single-sex prisons, or indeed single-sex spaces and services more broadly.
There are all kinds of vulnerable men in prison, but they should be dealt with in the male system, not the female one – including those who identify as transgender. On the other hand, the UN Special Rapporteur on violence against women and girls has also highlighted the potential for sexual predators to abuse self-identification laws. Indeed, the number of male offenders identifying as women to gain access to women’s prisons has become so commonplace internationally that the term ‘Prison Onset Gender Dysphoria’ has been coined to refer to it.
Interestingly, there doesn’t appear to be a wave of female offenders identifying as men who want to be housed in men’s prisons. I wonder why that is.
Rachael Wong is the CEO of Women's Forum Australia
Women’s Forum Australia is an independent think tank that undertakes research, education and public policy advocacy on issues affecting women and girls, with a particular focus on addressing behaviours and practices that are harmful and abusive to them. We are a non-partisan, non-religious, tax-deductible charity. We do not receive any government funding and rely solely on donations to make an impact. Support our work today.
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