People who transgress the traditional boundaries of sex and gender pose a challenge for correctional systems. Transgender persons are those for whom sex (physical characteristics) and gender (self- and social-identity) is not always congruent. While there is currently only a small number of transgender inmates in the Australian prison system, these particular inmates are at substantially high risk of assault and/or self-harm. For this reason, it is important that there are appropriate policies and procedures in place for the management of transgender inmates.
This paper is a summary of a longer report on the issue of transgender persons and the Australian legal system (which is available on request). The longer report covers the following issues in more detail and explores the role of the common law, international obligations, and legal definitions of sex and gender.
The New South Wales Anti-Discrimination Act defines a transgender person as someone who:
* identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex; or
* has identified as a member of the opposite sex by living as a member of that sex; or
* being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex, and includes a person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.
Transgender people may be male to female (MtF) or female to male (FtM). The definition in the anti-discrimination legislation also covers inter-sexed people; that is, those people who have both male and female characteristics from birth.
A similar definition to that outlined above appears in the Australian Capital Territory, Northern Territory, and South Australia anti-discrimination legislation, as well as the Commonwealth Sexuality Discrimination Bill. Note that these definitions are largely based on self-identification, not medical intervention. Therefore, a transgender person falls within this definition whether they have had any "reassignment surgery".
In some jurisdictions, birth certificate legislation provides for a new birth certificate to be issued to a transgender person after "reassignment surgery". Statutory definitions of "reassignment surgery" are, however, not currently consistent. In some jurisdictions, any surgical procedure that involves the reproductive organs, that has been carried out for the purpose of assisting the person to be considered a member of the opposite sex, is considered "reassignment surgery". Hysterectomy or castration could be enough to satisfy this test. The South Australian Act considers a reassignment procedure to involve "genitals and other sexual characteristics". Where a birth certificate is amended, a person is to be treated as a member of the reassigned sex for the purposes of the law of that state /territory, and others with similar legislation.
Any definition of transgender for the purpose of correctional policy needs to be broad enough to cover individuals protected by the anti-discrimination legislation, as well as those who have had their birth certificates amended.
Occurrence of Transgender Persons
It is notoriously difficult to ascertain the number of transgender people in the population. Overseas studies have estimated a broad range of figures. Bodlund (1996) cites studies indicating 1 for every 12,00037,000 people for MtF, and 1 for every 30,000-150,000 for FtM. Bourke (1994) cites the figures as 1 for every 40,000 MtF and 1 for every 100,000 FtM. These ratios may vary between countries. However, Beemer (1996) estimates the incidence of MtF and FtM to be approximately equal.
It appears that far fewer FtM individuals come to the attention of medical and legal professionals, making estimates of this group extremely unreliable. This is believed by some to be because FtM individuals are able to "pass" more easily in a social context as men, which leads to fewer social and psychological difficulties (Hage 1995). …