WA Trans woman prisoner’s bid to switch to women’s prison halted in emergency bid by Cook Government

The Cook Government has mounted an emergency legal bid to stop a violent criminal who has transitioned to a woman inside prison from transferring to a female jail. Government lawyers went to the Supreme Court to prevent the shift after the State Administrative Tribunal ruled the woman had the right to move. The SAT ordered the Department of Justice to transfer her from the male prison while she launches a discrimination case before the Equal Opportunity Commission. Lawyers representing the Department of Justice this week sought a court order to set aside the SAT’s interim decision until an appeal was heard. Supreme Court Justice Craig Bydder will hand down his decision on Friday afternoon. The prisoner’s identity is being kept secret for fear she will be bashed or raped if other criminals find out she is officially now a woman. The court heard she had already been beaten and sexually assaulted and her physical safety was a primary reason she wanted to be moved. Codenamed SD, the inmate watched this week’s court proceedings via video link. She became visibly emotional after 90 minutes of argument, wiping tears from her eyes as the court heard about her situation. The suppression order protecting SD’s identity limits how much detail can be published about her crime other than that she is serving an extraordinarily long minimum sentence after being found guilty. The case rests partially on the implications of the awarding to SD of a gender recognition certificate. That document, which was issued under the since-rescinded Gender Reassignment Act, was used to change the sex on SD’s birth certificate. It is understood the inmate began transitioning soon after being sentenced, undergoing hormone therapy and extensive psychological treatment while behind bars. Department of Justice lawyer James Bennett said transferring SD would cause significant disruption. “Rolling lockdowns will need to be enforced in whichever prison SD is housed,” he said. “There will be considerable demand on prison staff to undertake that regime.” Mr Bennett said the prisoner would have to spend the majority of her time in her new location “locked down” in her cell. “There will likely be significant curtailment of SD’s rights in whatever female prison she is housed,” he said. “It is difficult to see how that would be of real benefit to SD. It would not be possible for the respondent’s current daily routine . . . to be replicated. “She could not get safe access to entitlements . . . such as the library, employment and visits from other people.” Mr Bennett questioned the mental impact on SD of being transferred to a female jail only to be sent back to the men’s compound should her equal opportunity case fail. “If you get what you desperately want and have it taken away, that can be devastating for a person,” he said. SD’s lawyer, Liam Nicholls, said his client accepted the possibility she would be sent back to the male prison if the Government’s appeal against the SAT ruling succeeded. He argued it could be months before a decision was reached on her discrimination case so she should be transferred immediately. “There is clear evidence that SD has been victim of serious sexual and violent offending against her,” Mr Nicholls said. “Horrible violence has been inflicted on her in a male prison by men and that will stop if she is transferred.” Mr Bennett refuted suggestions the Department of Justice did not report an attack to police, saying internal prison records showed police were alerted and relevant items were seized as part of the investigation. Mr Bennett acknowledged that SD “feels unsafe and scared in her current placement”. “Nobody is suggesting she does not feel that way,” he said. The court heard SD believed prison staff were unable to protect her from “constant ongoing abuse and attacks”. She stopped reporting assaults because the repercussions of making a complaint were not worth the risk. “If SD is transferred to a female prison there is nothing to suggest things would be different there,” Mr Bennett said. Justice Bydder said there was no common law right for someone to be housed in a specific prison based on gender or sex. It was up to the discretion of the Department of Justice. Mr Nicholls said that before the SAT decision was handed down, the Department could house SD in 17 different jails. Eight were exclusively male, four were exclusively female — with Bandyup Women’s Prison, pictured, the best known — and five housed men and women. He said that the SAT order that she be moved from a men’s jail meant “she could still go to nine prisons”. “We are talking about a constraint on discretion,” Mr Nicholls said. The WA Government said it would be inappropriate to comment extensively on the case. “The Department of Justice has appealed against the State Administrative Tribunal’s decision,” a spokesperson said. “The safety of staff and prisoners is our priority.” The Department of Justice declined to comment on how SD was able to transition behind bars. “The Department doesn’t comment on individual cases and accordingly would not disclose personal medical information,” a spokesperson said. “Generally, unless treatments are deemed clinically necessary, a prisoner would be required to fund these privately, subject to custodial and security considerations.”

WA Trans woman prisoner’s bid to switch to women’s prison halted in emergency bid by Cook Government

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