This is a part of No Pride in Prisons’ Abolitionist demands. These demands were originally published as a book. To see a pdf of the book, click here. To buy a copy, please email info@noprideinprisons.org.nz

International studies have consistently demonstrated that trans people, particularly trans women, experience significant levels of violence and discrimination in prison.[1] This violence occurs in many ways, from harassment by staff and other inmates, to physical and sexual violence. In particular, a 2007 report on California prisons found that trans women are thirteen times more likely than other inmates to be sexually assaulted while in prison.[2] This finding is supported by the largest ever survey of LGBTIQ prisoners in the USA, conducted by Black and Pink, which found that 79% of trans women in the study had been sexually assaulted while in prison.[3] Further, 37% of all LGBTIQ respondents to the Black and Pink survey said that they had experienced some form of sexual violence at the hands of prison staff.[4] 22% of trans women in the survey reported that they had been specifically raped by prison staff.[5]

With these statistics in mind, the incarceration of a trans person, particularly a trans woman, is inherently a harsher sentence than the equivalent incarceration of a cisgender person. Sentencing a trans woman to a custodial sentence must be recognised as sentencing her to near-unavoidable prison violence and sexual assault. Subjecting a trans person to increased rates of sexual and physical assault is entirely unacceptable.

For these reasons, No Pride in Prisons demands that, in the intermediate term, no trans person be sentenced to a custodial sentence.[6] This demand is not without precedent. In McGhie v Police, a trans woman was given a non-custodial sentence on the basis that her gender would make that sentence unnecessarily harsh.[7] In cases involving more serious offences, custodial sentences have often been reduced where gender identity has been considered (Tua v Police, R v Warwick).[8] In other words, there are cases where even the New Zealand Courts recognise that prisons are extremely unsafe places for trans women, and account for that in sentencing. No Pride in Prisons supports an extension of this legal principle to all custodial sentences for all cases involving trans people. Doing so would, in effect, end the incarceration of trans people.

[1] Valerie Jenness et al., Violence in California Correctional Facilities: An Empirical Examination of Sexual Assault, (California: Center for Evidence-Based Corrections, 2007). Jason Lydon et al. Coming Out of Concrete Closets: A Report on Black & Pink’s National LGBTQ Prisoner Survey, (United States: Black & Pink, 2015.

[2] Valerie Jenness et al., Violence in California Correctional Facilities: An Empirical Examination of Sexual Assault, (California: Center for Evidence-Based Corrections, 2007), 3.

[3] Jason Lydon et al. Coming Out of Concrete Closets: A Report on Black & Pink’s National LGBTQ Prisoner Survey, (United States: Black & Pink, 2015), 44.

[4] Ibid., 39.

[5] Ibid., 44.

[6] Although, of course, in the longer term No Pride in Prisons demands that no one at all should be ‘sentenced’ to anything, let alone a custodial sentence.

[7]McGhie v Police HC Wellington AP 172-91, 9 October 1991.

[8]Tua v Police HC Auckland CRI-2011-404-340, 18 November 2011. R v Warwick HC Auckland CRI-2010-057-508, 15 June 2010.