Schedule 7: Crimes (Administration of Sentences) Act 1999
Overview of Proposed Amendments
The amendments propose that when conducting a personal search of an intersex or transgender person, the search must be conducted by a particular officer or class of officer to carry out the search if the intersex or transgender person has expressed such a preference and if such an officer is available.
1. Impacts on the Rights and Safety of Women
The proposed amendment poses significant challenges to the rights, safety, and comfort of women—both inmates and correctional staff. It introduces a special class based on the subjective concept of 'gender identity,' potentially compromising the individual rights of those working in the criminal justice system. This shift in the balance of power could endanger the well-being of vulnerable individuals within the correctional system, whose human rights should be protected alongside those of individuals claiming a trans or gender identity.
2. Search Procedures - (Schedule 7[4], replacing Section 253J (4)
The amendments propose that where an inmate identifies as intersex or transgender, they may choose an officer to conduct the search based on their gender identity. This could put female officers in uncomfortable positions if they are requested to search men who identify as women.
3. Impact on Vulnerable Female Inmates
Female inmates might be searched by males who claim to have a trans/female identity, leading to feelings ranging from discomfort and vulnerability, to feelings of abject violation and trauma, particularly for victims of sexual abuse or assault.
4. Security vs. Sensitivity
Allowing inmates to choose their searcher based on subjective gender identity could compromise the effectiveness and thoroughness of searches, impacting overall facility safety.
5. Potential Conflict with Anti-Discrimination Act 1977
Correctional officers may find themselves in a difficult position, needing to balance compliance with anti-discrimination laws with the practical needs of maintaining security and order.
6. Lack of Evidence to Justify Amendments
Schedule 7 purports to ameliorate existing discrimination in the criminal justice system against transgender individual, without providing supporting data. Data is not recorded or disaggregated by gender identity and sex, making it difficult to substantiate any claims regarding the experiences of transgender people in the criminal justice system.
This raises important questions: Where is the necessary data to inform sound law and policy?
Where is the evidence of discrimination, and why has it not been proven nor established to justify the inclusion of these amendments in the Equality Bill?
Recommendation:
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Ensure that search procedures in correctional facilities are based on biological sex, to protect the safety and privacy of inmates and staff.