Commissioner’s Requirements
Management of Prisoners with Intersex Conditions or TranssexualismSection / 2. Prisoner Management
CR Number / 2.4.1 / Current Issue Date / March 2016
Legislation & Policy / Corrections Act 1986
Charter of Human Rights & Responsibilities Act 2006
Equal Opportunity Act 2010
Corrections Regulations 2009
Standard / Prisoner Management
Attachments / Nil
Forms / Nil
1 PURPOSE
To define the guidelines for the assessment and management of prisoners’[1] with intersex conditions or transsexualism.
2 REQUIREMENT
2.1 Prison and relevant Head Office staff must adhere to these guidelines when taking action in relation to sentence and offender management processes and procedures.
2.2 All relevant staff must be appropriately informed and supervised to ensure compliance with these guidelines.
2.3 These guidelines are applicable to both remand and sentenced prisoners.
3 GUIDING PRINCIPLE
3.1 Save for the loss of liberty imposed by law, prisoners’ human rights include, but are not limited to, the rights of Victorian citizens enshrined in the Charter of Human Rights & Responsibilities Act 2006.
3.2 Prisoners with intersex conditions or transsexualism must be treated with the same respect and dignity accorded to any other prisoner and must not be discriminated against or harassed on the grounds of their medical condition, gender identity or related issues.
3.3 The safety of the community and the safety and welfare of the prisoner is of paramount consideration.
4 CONTEXT
The key underlying principles of this Requirement are: safety and security (of individuals concerned and within the prison environment) and rights and responsibilities afforded by legislation.
5 GENDER IDENTITY AND GENDER
5.1 Protocol
5.1.1 For most people all the indicators of gender, at birth and thereafter, are in harmony. For a small number of people this is not so, and their sense of themselves as male or female is at odds with the gender in which they were raised.
5.1.2 There are two main groups for whom this may be an issue:
· people with an intersex condition; and
· people with transsexualism.
5.1.3 While the principles and processes for the management of transsexual and intersex prisoners are similar, they are two distinct groups.
5.2 People with Intersex Conditions
5.2.1 There are a number of "intersex conditions" where a baby is born with reproductive organs and/or sex chromosomes that are not exclusively male or female. Previous words for intersex were "hermaphrodite" and “androgyne”.
5.2.2 The gender identity of a person with an intersex condition is unable to be accurately determined until they mature. A number of people with intersex conditions reject their gender of rearing during adolescence or adulthood and seek to reverse childhood treatments to assert their true gender identity.
5.2.3 In adolescence or adulthood some people with intersex conditions may need medical or surgical intervention to align the various aspects of body into harmony with their self-perception, and sometimes to reverse the effects of inappropriate surgical interventions when they were children.
5.2.4 For many people with intersex conditions, no issues will arise in a prison context which require special policy consideration. In such cases the necessary medical management of ongoing hormone and other treatment will take place in the routine medical context.
5.3 People with Transsexualism
5.3.1 In cases of transsexualism, a baby's chromosomes and external genitalia seem unambiguous, but in fact conflict with the child's sense of self as male or female, although this cannot be known until later.
5.3.2 When the conflict between body and mind becomes clear, the child (or adolescent or adult) may commence a process of bringing the body into harmony with the mind by medical or surgical intervention, and by changing their name and dress and manner of living, or combinations of these, over time.
5.3.3 For transsexual people the process of bringing the external manifestations of gender into accord with their inner perception is known as "sex affirmation".
5.3.4 It is important to note that the popular notion of a "sex change" involves a misunderstanding. The external appearance of gender or anatomical sex does indeed change, but for the person concerned their core gender identity, going back as far as they can remember, does not change. Sex affirmation is about reconciling the conflict between inner and outer self, and enabling other people to relate to the person in a manner consistent with the person's own understanding of themselves.
5.4 Terminology
5.4.1 In an area where there have been major social, medical and legislative developments in recent years, there is as yet no complete consensus on some of the terms and concepts involved. Refer to the Definitions.
5.4.2 Officers should be aware that the people concerned may not make the same terminological distinctions as are used in this policy. Officers should therefore be alert to the underlying meaning, and respectful of individuals’ own language.
5.5 Medical Issues
5.5.1 The sense of distress experienced by people with transsexualism, whose body is not aligned with the gender with which they identify, is also known as Gender Dysphoria, or gender identity disorder, a medical condition which can be treated to bring the body into line with the person's core identity.
5.5.2 Treatment for people with transsexualism may include counselling, hormone treatment, surgical intervention (genital and chest reconstruction), non-surgical dilatation, prostheses, gynaecological treatment (including pap smears), urological treatment and peer support.
5.5.3 There are a range of common surgical procedures which may be used to assist in the physical alignment with the psychological gender, and some transsexual people have surgery to change their external genitalia and secondary sexual characteristics to match their self-identified gender. However, there are limitations to the use of surgery, and surgery will not be suitable for many transsexual and intersex people. Sex affirmation surgery - colloquially the "sex change operation" - is not a defining or necessary characteristic of a transsexual person's gender.
5.5.4 Although most intersex people do not have gender identity issues, in the sense of inconsistent appearance and self-perception, most have a need for continuing hormone treatment, and many of the issues noted above may be relevant to some intersex people too.
5.6 Resolving Doubts
5.6.1 Where there is a doubt about the genuineness of a person's assertion of a particular gender identity, consultation should occur with the prison medical officer. In clarifying these issues, the prison medical officer may seek to consult with the person’s medical practitioner in the community.
5.6.2 If this is not possible the prison medical officer may also consult with the Monash Medical Centre Gender Dysphoria Clinic, Gay Men’s Health Centre or similar publicly funded, specialist facility. In the case of a prisoner with an intersex condition, consultation should occur with a specialist endocrinologist.
5.6.3 Written consent must be obtained before consultation occurs with the person’s medical practitioner.
5.7 Equal Opportunity and Human Rights Legislation
5.7.1 Under the Equal Opportunity Act 2010 (‘the EO Act’) discrimination on the ground of gender identity is unlawful. In other words, a person’s gender identity, which includes whether or not they have transsexualism or an intersex condition (as discussed above), must not be the basis for less favourable treatment or disadvantage.
5.7.2 For the purposes of the EO Act gender identity is defined as meaning:
(a) the identification on a bona fide basis by a person of one sex as a member of the other sex (whether or not the person is recognised as such):
(i) by assuming characteristics of the other sex, whether by means of medical intervention, style of dressing or otherwise; or
(ii) by living, or seeking to live, as a member of the other sex; or
(b) the identification on a bona fide basis by a person of indeterminate sex as a member of a particular sex (whether or not the person is recognised as such):
(i) by assuming characteristics of that sex, whether by means of medical intervention, style of dressing or otherwise; or
(ii) by living, or seeking to live, as a member of that sex.
5.7.3 The Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’) also protects against discrimination on the basis of gender identity. In particular, Article 8 (Recognition and equality before the law) relevantly states that:
(2) Every person has the right to enjoy his or her human rights without discrimination.
(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.
5.7.4 As a general guide, prisoners with intersex conditions or transsexualism should not be disadvantaged on the basis of their gender identity and staff are required to act in accordance with the guidelines outlined in this document. If in doubt, staff should refer to their line manger in the first instance. Managers may also seek advice from the Victorian Government Solicitors Office.
6 CORRECTIONAL MANAGEMENT OF PRISONERS WITH INTERSEX CONDITIONS OR TRANSSEXUALISM
6.1 Protocol
It is not necessary to identify all imprisoned people with transsexualism or an intersex condition.
6.2 Initial Reception
6.2.1 All prisoners are initially received into the prison according to the gender specified on their warrant. If the prisoner presents with an anatomical sex that differs from his or her gender identify, or, if the prisoner volunteers he or she has, or has had, transsexualism or an intersex condition, the prison medical officer must immediately be notified of the fact.
6.2.2 Prisoners with transsexualism or intersex conditions are highly vulnerable in a corrections environment, and in every case, their initial placement must be reviewed as a matter of urgency by the Sentence Management Branch (SMB), according to the process detailed below. A record of the prisoner's gender identity should also be made in the LSi/RNR on PIMS/E*Justice.
6.2.3 Before the SMB meeting, particular care must be taken to ensure the prisoner’s safety. This will ordinarily include the prisoner being kept separate from other prisoners and accommodated in a single cell with toilet and shower facilities. The prisoner’s preference concerning segregation from or interaction with other prisoners will be considered.
6.3 Sentence Management Branch (SMB) and Initial Placement
6.3.1 As soon as possible after the initial arrival of a prisoner with an intersex condition or transsexualism (remand or sentenced) and after completion of the reception assessment and medical screening, a Sentence Management Panel (SMP) must be convened to discuss and confirm the appropriate placement of the prisoner within the prison, or another prison if deemed more appropriate.
6.3.2 The SMP will include a representative of the Sentence Management Branch; a representative of the Health Services Provider (e.g. medical officer or delegate); Operations Manager or delegate; other relevant health staff; and a psychologist.
6.3.3 All prisoners with intersex conditions or transsexualism will be assessed by the SMP and an appropriate plan developed addressing issues relating to the placement and safety of the prisoner.
6.3.4 Each sentenced prisoner must be assessed by the SMP to determine an appropriate sentence plan for that prisoner. Factors such as the prisoner’s background, their age and gender, their need for education and training and any proposed plans for rehabilitation should be taken into account when developing the plan.
6.3.5 Issues relating to medical treatment of remand and sentenced prisoners will be referred to the treating medical officer at the prison.
6.3.6 Placement of the prisoner will be determined by the SMP with reference to the following factors:
· confirmation of the prisoner’s gender, with reference to the definition of gender identity contained in the Equal Opportunity Act. Consultation should occur with the prisoner’s treating practitioner in the community, wherever possible. Consultation may also occur with a publicly funded specialist facility such as the Monash Medical Centre Gender Dysphoria Clinic or Gay Men’s Health Centre for prisoners with transsexualism, or a specialist endocrinologist in the case of intersex prisoners;
· the safety and welfare of the prisoner, including a consideration of available options to achieve this;
· the prisoner’s preferred placement (male or female prison); and
· the safety and welfare of other prisoners (e.g. if the prisoner has been convicted of violent or sexual offences).
6.3.7 In considering the above factors, the safety and welfare of the prisoner and that of other prisoners will be the priority.
6.3.8 The prisoner may seek a review of their placement by the Commissioner, Corrections Victoria or Commissioner’s delegate.
6.4 Placement within Prison
6.4.1 Ongoing management of prisoners with intersex conditions or transsexualism, including placement within the prison, must be in accordance with existing Sentence Management and Case Management Review Committee (CMRC) processes. These decisions will be made with a view to ensuring the safety and welfare of the prisoner and other prisoners, as well as the security and good order of the prison.
6.4.2 Where a prisoner with an intersex condition or transsexualism requests co-placement with another prisoner, this will be considered but not guaranteed, and only if the other prisoner supports the request. Co-placement is dependent on a range of factors, with priority given to the safety, security and good order of the prison. Other consideration will include, but are not limited to, both prisoners' security ratings, identified drug user status, and rehabilitation and program needs.
6.5 Access to Rehabilitation, Work, Education and other programs
6.5.1 Prisoners with intersex conditions or transsexualism must have access to the same range of work, rehabilitation, education and recreation programs and facilities as other prisoners.
6.5.2 Decisions regarding participation in activities external to the prison, such as work gangs, will be on the basis of ensuring security and public safety. All prisoners engaged in external activities are required to conform to appropriate standards of behaviour as determined by the General Manager.
6.5.3 Participation in individual or group programs will be determined on the basis of need and the availability of programs at the prison. Programs are to be conducted in such a manner that protects the safety and welfare of all participants.