As at September 2020, there were 685 female prisoners in Western Australia, representing just over 10% of the total prison population. Women from Aboriginal communities are significantly over-represented comprising 47% of women in prison. This is a shockingly high figure when one considers that the Aboriginal population in Western Australia comprises only 1.8% of the total population in that state. The issues facing women in prison in Western Australia, including their offending patterns, vulnerabilities and needs mirror those faced by women in prison in the UK. In Western Australia there are four women’s prisons and a further six that have separate facilities for male and for female prisoners.
Gender Reassignment Act (2000)
The piece of legislation that enables legal change of gender is the Gender Reassignment Act (2000).
In order to legally change gender and obtain a Recognition Certificate, applicants are required to have undergone a 'reassignment procedure’. A reassignment procedure is defined as:
a medical or surgical procedure (or a combination of such procedures) to alter the genitals and other gender characteristics of a person, identified by a birth certificate as male or female, so that the person will be identified as a person of the opposite sex and includes, in relation to a child, any such procedure (or combination of procedures) to correct or eliminate ambiguities in the child’s gender characteristics
The applicant must also prove to the satisfaction of the Gender Reassignment Board that:
(i) …his or her true gender is the gender to which the person has been reassigned; and (ii) has adopted the lifestyle and has the gender characteristics of a person of the gender to which the person has been reassigned; and (iii) has received proper counselling in relation to his or her gender identity.
If successful, applicants will receive a Recognition Certificate which states that the person to whom it refers (a) has undergone a reassignment procedure; and (b) is of the sex stated in the certificate. After the registration process is complete, a new birth certificate can be obtained with the sex marker changed to reflect the legal change of gender.
Applications may also be made on behalf of children by their parent or legal guardian.
However, elsewhere WA Government supports self-ID. The WA Labor Plan for Gender Equality uses the term ‘woman’ to include anyone who identifies and lives as a woman.
At a policy level public and private institutions and agencies are increasingly beginning to adopt self-ID as the criteria for entry to single-sex spaces for women, reflecting the definition of ‘woman’ used by the WA Government in the WA Labor Plan for Gender Equality and changes to the federal legislation (see Sex Discrimination Act, 1984).
Prison Policy and Practice
Data collection on transgender prisoners in Australia is poor. Estimates suggest that “across the whole prison population, which was just over 41,000 in March 2017, …. there are between 40 and 246 transgender people in Australian prisons”, representing under 1% of the total prison population. The split between males who identify as transgender and females is not known.
The WA Department of Justice Operating Policy for transgender prisoners can be found at Section 4.6 here:
This policy was implemented in November 2020. Decisions concerning transgender prisoners are made on the basis of self-ID, subject to certain other assessments. Hence, there is no requirement for a Recognition Certificate in accordance with the Gender Reassignment Act. Neither is there any requirement for any reassignment surgery or medical procedure.
On the basis of self-ID, prisoners are, amongst other things, entitled to:
Request the sex of prison officer who is to undertake searches, including ‘strip searches’. Where an officer declines to search the prisoner they shall request via the Senior Officer, another officer, of the prisoner's preferred gender, to conduct the search. This means that although no individual female prison officer can be compelled to strip search a male prisoner who identifies as a woman (at least in theory), a female prison officer will still be required to undertake the search.
A male prisoner who identifies as a woman is entitled to request to be housed in the female estate. Placement decisions are made by the Assistant Commissioner in consideration of the following:
a) the nature of the prisoner's current offence and criminal history
b) previous custodial history, including previous behaviours and incidents which have impacted on the safety and security of the prison
c) perceived risks to the safety of the prisoner and/or other prisoners
d) intelligence reports.
As with prison policies concerning the allocation of transgender prisoners in other countries, this policy was developed and implemented by stealth and involving little to no consultation with stakeholders representing the interests of women in prison. The WA Prison Officers’ Union has not confirmed whether or not they were excluded from the consultation process. The policy was announced and implemented at the end of the political business year, leaving no time or opportunity for challenge.
This policy is in breach of the Equal Opportunity Act (1984) which defines woman as a member of the female sex irrespective of age.
It is also in breach of The Convention on the Elimination of All Forms of Discrimination Against Women.
How can I help?
You can help by signing and sharing the SSPWA petition.
You can also help by writing to your MP.
You can also write to the State and Federal Ministers for Corrective Services, Ministers for Women, Ministers for Indigenous Affairs, Ministers for Children and Attorney Generals.
Visit the Single Sex Prisons WA website.
Brisbane International Women’s Day 2021: Watch a speech about protecting vulnerable women in prison.