Culture

Trans Women Are Being Jailed In Male Prisons And Australia Needs To Pay Attention

We should be ashamed.

To mark International Women’s Day, Junkee is hearing from three different writers about gender, identity and what we need to fight for in 2018.

This piece discusses the incarceration of trans people, violence against trans women and suicide.

Last month, a woman named CJ Palmer was sentenced to six years in prison after a Perth court found her guilty of committing grievous bodily harm, by transmitting HIV to a man she engaged in sex with a number of times over an eight month period.

Palmer did not inform the man she had tested positive to HIV; Palmer’s defence maintained she had not been told she had the virus, which the jury rejected, convicting her. Because CJ Palmer is a trans woman — and because the prison system in Western Australia is not adequately equipped to treat trans individuals who are incarcerated — Palmer will likely spend her sentence in a male prison, despite identifying as a woman.

Prior to this sentencing, Palmer had already spent over 300 days in custody in a male prison. She has been kept in solitary confinement, denied access to hormone replacement therapy (HRT), not provided with appropriate clothing, and searched by male guards — all of which signal an utter disregard for Palmer’s wellbeing. Upon Palmer’s return to a male prison, she will continue to be kept isolated in crisis care — something that could have extreme psychological consequences.

The negligent treatment Palmer has received since her conviction, and her return to a men’s prison for presumably the remainder of her sentence, highlights a devastating lack of care when it comes to how Australia’s prison system handles transgender inmates. While CJ Palmer’s situation is horrifying, it is also not at all uncommon, in Australia or overseas.

Catastrophic Consequences

In 2012, a Minneapolis trans woman of colour named CeCe McDonald was imprisoned for second-degree manslaughter after she defended herself from a racist and transphobic assault.

After being confronted with racist and transphobic slurs while outside a bar with friends, the interaction became physical when her attacker smashed a glass of alcohol against her face, requiring 11 stitches. McDonald is alleged to have taken a pair of scissors out of her purse, one of her attackers was stabbed in the chest and died from the wound. McDonald was housed in a men’s prison for 19 months as a result.

There is clear evidence that placing trans women in men’s prisons can cause significant psychological trauma, and that neglect with regards to care can have catastrophic consequences. For instance, Catherine Moore was a transgender woman who in 1997 ended her life after being placed in a New South Wales men’s prison. She had been placed within the protection unit because of her “overt feminine characteristics”, but despite this was raped by a male prisoner. She ended her life soon after.

In 2015, a 21-year-old trans woman named Vikki Thompson was found dead in her cell at a male prison in Leeds, after warning both prison officers and custody staff in court that she would not survive the experience. She experienced significant harassment within the prison and was on suicide watch at the time of her death. Guidelines in England and Wales are such that trans prisoners are sent to a jail that aligns with the gender they were assigned at birth, unless they have received a gender recognition certificate — which can be a difficult and costly process.

Australian Law Needs To Get Better

In Australia, the law varies on a state-by-state basis.

In NSW, the system is considered better than elsewhere in the country, and trans prisoners are typically placed in facilities that align with their self-expressed gender identity. Correctional staff are required to address and manage trans people in accordance with their self-identified gender, and self-identification is the only criterion for identification as transgender.

However, access to hormones may be dependent on whether or not a transgender individual has already commenced hormone therapy prior to being incarcerated. If they have, they are able to continue that hormone program within the NSW prison system. In Queensland, transgender women are typically placed in men’s prisons and, similar to NSW, prisoners are unable to access hormone and start transition unless they have begun hormone therapy prior to being incarcerated.

In Western Australia, the system suffers from a lack of clear, concrete policy — and as such, it appears to be quite common for trans women to be placed in men’s prisons. Like in the UK, whether or not a trans person is placed in a prison of their identified gender seems dependent on whether they have changed their legal sex on their birth certificate. In WA, this means having undergone a “reassignment procedure” such as genital reassignment surgery — again, an extremely costly, lengthy and potentially unviable process.

“The most marginalised within the trans community are the most likely to be convicted and spend time in prison”

Denying incarcerated trans people access to HRT — as well as appropriate clothing and other materials that may be required to affirm one’s gender — is a particularly cruel violation of their rights to medical access.

For what its worth, gender dysphoria and the consequent distress it may cause a trans person is officially recognised in the DSM-V, and hormone replacement therapy is typically considered the most effective treatment option. As such, in many cases it is essential medical treatment and — as with basically any other situation where a prisoner requires access to vital medical treatment — should be provided to trans people and those who experience gender dysphoria while incarcerated.

Placing trans people in prisons that do not align with their gender identity is a cruel and potentially traumatic form of structural violence. In particular, being placed in ‘protection’ or crisis units within prisons that incongruent with one’s gender identity often translates to solitary confinement for up to years on end — which may well produce negative psychological consequences.

In 2011, the United Nations Special Rapporteur on Torture described solitary confinement as cruel, inhuman punishment, noting that harmful psychological effects can occur after as little as 15 days. Being subjected to solitary confinement for several years, then, is gravely concerning.

Intersecting Oppressions

It’s worth considering how intersecting oppressions often overlap with a trans identity within the judicial system — as a result, the most marginalised within the trans community are the most likely to be convicted and spend time in prison. In 2011, an American study found that black transgender people had a 47 percent rate of incarceration compared to 12 percent of white transgender people, and that 38 percent of black trans women were sexually assaulted in jail.

In CJ Palmer’s case, there have been concerns raised about her treatment with regards not only to her trans identity, but also her status as a former sex worker and a person living with HIV. In his sentencing, Judge Christopher Stevenson claimed that the man Palmer transmitted HIV to would have to live with the “social death sentence” of living with the virus.

Palmer’s excessive prison sentence highlights the ongoing criminalisation of HIV, and the implications for societal discrimination against those living with HIV. There is evidence that HIV criminalisation doesn’t actually reduce HIV transmissions at all, and that the stigma that comes with it actually creates more barriers to effective treatment and health promotion. As The Institute of Many’s Nic Holas explained in comments to OUTinPerth, “The criminalisation of people living with HIV is a blunt, ineffective tool in the war to end HIV.”

Ultimately, the incarceration of trans women like CJ Palmer in men’s prisons must be an immediate feminist issue. It is a gross miscarriage of justice to subject trans people to conditions in a prison that does not align with their gender identity, and to be denied support or access to medial transition.

Until there is significant change, the lack of concrete policy and transparency around gender-diverse prisoners will continue to result in situations such as Palmer’s.

During her time in prison, you can support Palmer by donating to her commissary fund or writing letters to her – information regarding both can be found here.

Allison Gallagher is a freelance writer and artist from Sydney and tweets about gender and sexuality at @allisongallaghr.