When I was arrested, I was taken to a male prison. Groups of green-clad men whistled and catcalled as I passed their holding cells on the way to my own. Then I was strip-searched. Standing naked before two fully dressed officers inspecting every inch of my body, my embarrassment gave way to disbelief. I gestured to my exposed anatomy:
‘Does it look like I should be here?’ I asked.
Both officers shrugged. One simply replied ‘management said you should be, so you are’.
Placed on suicide watch, I was escorted to a ‘safe’ cell in the prison clinic where one wall was just a plexiglass window. There I spent the next two days, showering, sleeping and eating like an animal in a particularly depressing zoo. Male passers-by peered in at their pleasure.
After that, I was taken to the nearby Silverwater Women’s prison. That was as it should be. My legal status was female. I was recognised and treated as female by my family, my community and the government itself.
During eight years in women’s prisons I met violent women, vulnerable women, manipulative women, frightened women and extraordinarily resilient women. I met women who were four-foot-nothing and (yes, cisgender) women who were 6 foot two, 100 kilo units. What I learned was that risk rarely maps neatly onto biological categories. Some of the most dangerous prisoners I encountered were physically small. Some of the gentlest were not.
My move to a women’s gaol happened nearly a decade ago.
But just this year, the NSW Government has quietly changed the prison regulations. That may force more trans women to suffer humiliations like mine in a male prison, and much, much worse.
The new regulation gives prison authorities broad powers to decide whether a prisoner is treated as a “male inmate” or a “female inmate” while in custody. In making that decision, they bear no responsibility to align the label they give you with your anatomy, your lived social reality, or your legal sex. What matters now are the ‘risks to the safety of the inmate or others’, the effect on the security and good order of the prisons, and any other factor the decision-maker considers relevant.
Crucially though, without having to worry about breaching the Anti-Discrimination Act 1977 (NSW), prison authorities can now place trans and gender-diverse people in prisons corresponding with the sex assigned to them at birth.
The practical effect is simple. How a person was labelled at birth can override the legal, social and physical reality of their adult life. You are male because we say you are male. That is a nightmare I do not want any of my sisters to face.
In other words, a trans woman may have changed her legal sex. She may have undergone medical transition. Every government document she carries may recognise that she is female. Her body, her life, and her community may all reflect that reality.
But once she enters custody, prison administrators can decide otherwise.
They can classify her as male.
They can place her in a men’s prison.
They can expose her to searches by male officers.
And they can do so without breaching NSW anti-discrimination laws.
And they can do so because one decision maker thinks that how she was labelled at birth means she is too ‘risky’ to be around other women. Because of how she was (wrongly) labelled at birth, she is relegated to a theoretical threat and not a person in need of protection and care like anyone else.
But when trans women are placed in men’s prisons, the risks are not theoretical. Research and lived experience have long pointed to far-higher rates of sexual assault, harassment, isolation, denial of gender-affirming care, psychological harm, self-harm and suicide for those women.
I know something about those risks because I experienced a small taste of them myself.
I spent only two days in a men’s prison before common sense eventually prevailed. Even in that short time, the message was unmistakable. My legal status did not matter. My body did not matter. My safety did not matter. What mattered was that somebody higher up the chain had decided where I belonged.
The regulation now in force gives prison authorities a legal framework to make similar decisions in the future. And unlike my experience, those decisions may not be corrected within forty-eight hours.
Some women could spend weeks, months or years living with the consequences.
The question is not whether prisons should manage risk. Of course they should. The question is whether prison authorities should be able to disregard a person’s legal sex, physical reality and lived experience, and replace them with their own assessment of who that person really is.
For most people, that prospect should be unsettling. For the people forced to live under it, it is a nightmare.
A prison sentence is the loss of liberty. It should not mean losing recognition of who you are.
Nearly a decade ago, a prison officer looked at me, looked at the men’s prison I had been sent to, and eventually recognised the obvious mistake.
The NSW Government has now created a system that risks turning that mistake into policy.
If you want to take against action against this overreach, sign the open letter to the Premier and Minister for Corrections demanding this regulation be overturned: https://transjustice.org.au/prison/