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14 November 2012

Trans in Prison: Part VI: Comments & Bibliography

Part I: to the conviction of Oscar Wilde
Part II: to Stonewall
Part III: to Farmer v. Brennan
Part IV: to the Synthia Kavanagh Human Rights Case
Part V: to the National Offender Management Service, New prison guidelines, 2011
Part VI: Comments & Bibliography

Prison, like sports (which I documented in August) is predicated on the gender binary only more so than normal life. Thus the existence of trans and intersex persons presents a problem that both of them attempted for a long time to ignore, but are now having to come to terms with.

This is a large topic, and I am sure that I have missed much, especially in non-English-speaking countries.

Prisoner is of course a term encompassing much variety. Some prisoners are in for nasty crimes, others for petty crimes that result from living as trans but unable to get any legal form of work. Others, more so in earlier years, are simply charged either with transvesting or with homosexuality.

It did seem for a while, with the pioneering examples of Shelly Ball and Synthia Kavanagh, that Canada was leading the world on the issue of trans in prisons. However Katherine Johnson was in the same prisons at the same time, and was unable to get treatment. Canada's lead was an illusion without substance, and the reactionary government of Stephen Harper (2006-15) cut off all funding.

Judges and prison administrators have 6 options re convicted trans persons:
  1. Locate them as per birth gender, ignore their current appearance and genitals, and put them in with the general population and ignore whatever abuse happens. This was common practice until fairly recently.
  2. Locate them as per their current genitals. Most North American and European prisons are now doing this. This allows post-operative women to go to women's prisons and allows trans men without phalloplasty to also go to women's prisons. However pre-op and non-op trans women are put at great risk of being abused. The young and the poor are very likely to be in this last group.
  3. Create separate wings or even separate prisons for trans (and possibly gay) prisoners. In the US this has evolved at Vacaville, Rikers Island and the Edna Mahan Correctional Facility, although both of the former two were discontinued in 2005. It will be interesting to see what happens with the trans-only prison at Emploi in Tuscany.
  4. Put trans prisoners, who elect or who complain of being raped, in 23-hour-per-day lockdown solitary confinement. Such confinement is mainly intended as punishment for violent prisoners and understandably trans prisoners put up with being raped rather than opt for this alternative. This is the policy at Rikers Island since 2005.
  5. To not send convicted trans person to jail unless their crime is very serious. This option was being followed by judges in the UK until the New Prison Guidelines came out last year. Not surprisingly writers for The Daily Mail were having conniptions over the practice.
  6. Locate them as per legal gender. The England & Wales: National Offender Management Service, Ministry of Justice issued New prison guidelines is an amazing step forward. Genitals are not to be checked. If the inmate is unable to produce a revised birth certificate or a Gender Recognition Certificate, the Gender Recognition Panel may be consulted. As per the stated fear of some that the cis women inmates could be at risk, the Guidelines carefully state: "There are some women who are guilty of violent crimes against other women and are still managed safely in the female estate. Any transsexual women with a gender recognition certificate who pose similar risks should be managed in a similar way in the female estate." Young transsexuals who have not yet applied for a Gender Recognition Certificate will have difficulty in being designated as female, but non-acceptance for NHS surgery and/or being unable to afford private surgery will not have to go to a male prison for that reason. At the same time the Guidelines allow trans men to choose to be in a women's prison. So far this approach is in England and Wales only. The non-imprisonment that was upsetting The Daily Mail has ended. This approach can easily be adopted by countries with Gender Recognition Laws: Spain, Portugal, Argentina, and probably also countries like Germany and Sweden. However it cannot be adopted where legal gender is provincially defined. We saw in the case of Tania Veilleux that Quebec's recognition of her gender was not honoured by the national Correctional Service of Canada.
Some feminist organizations have been getting in a tizzy about killers and abusers of women being put in women's prisons. There is a superficial argument for this in that the early examples of trans prisoners being given surgery and transferred have been John Pilley, Maddison Hall, Sherri Masbruch and Michelle Kosilek. One would have thought that the prison authorities would have experimented with inmates without a conviction of violence first, and considered these candidates only later. That is of course if they were sincere in wanting a program of surgery and transfer to actually work. However if they hold the program in contempt and want it to fail, then these are ideal inmates to start the program with. It is of course true that short-term convicts are less likely to apply for surgery and transfer: their aim is to get out of prison as soon as possible and get on with their transition. In general non-violent convicts get shorter sentences. However Deirdre Farmer got 38 years for passing bad cheques.

In addition, as mentioned in (6) above: "There are some women who are guilty of violent crimes against other women and are still managed safely in the female estate." Some cis women are as much a threat to other women as Pilley, Hall, Masbruch and Kosilek.

I included a few items about cis women being raped by male guards. As a feminist, and as a human being, I think that it is appalling that there are male guards in women's prisons. 95% of inmates are male, and so male guards do not need to be in female prisons for their career development. The frequency of cis women prisoners being raped by male guards is a serious problem, and statistically is enormously higher than being raped by a trans woman. I google searched GenderTrender for this topic and found absolutely nothing. What do we make of that?

The US is the first county to count more rapes of men than of women. However it is very unlikely to be the only one. We certainly have no statistics on prison rape in say Brazil or Turkey. So kudos to the US for starting to discuss the problem.

It was accepted in the 19th century that cis women should be segregated from male prisoners, especially as male prisoners are so more numerous. Cis women being absent, the more aggressive and horny of the men are willing to use trans women instead, and of course trans women should either be segregated (but not in solitary confinement) or in women's prisons. That will help trans women, but of course will not solve the problem of prison rape. Without either cis or trans women, certain male prisoners, the slightly-built, the better looking, the presumed to be gay, are designated as pseudo-women and compelled into sexual slavery. With will and the co-operation of the guards this problem can be much reduced. I could not find any reliable statistics, but it seems that the problem is much less in Europe than in the US. However with the current trend to privatization the odds of the problem being solved are much reduced as it is cheaper to do nothing.

1 comment:

  1. Somebody using the moniker CaroLines who's self description is "a man in a dress" describes my prison series as a "sordid list, messily presented". He also seems to to think that the series is about the US!!

    It is a stereotype that middle-class part time cross-dressers have no empathy for trans women who are doing it for real. Comments like 'sordid' reinforce such misconceptions.


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