Guest post: Strip searches in prisons - force and gender discrimination

In this second of two articles, guest blogger Mark Hanna analyses recent data revealed on strip searches of New Zealand prisoners. How is force used in these searches, and are transgender prisoners being systematically discriminated against and mistreated?

The Department of Corrections has recently released information under the Official Information Act regarding how they conduct strip searches. In my previous article, I looked at the number of searches being conducted, and the grounds on which they are conducted. But there's more to the story than that.

Use of force

As well as information on the number of "reasonable grounds" searches, I asked Corrections to tell me how many strip searches were conducted with the use of force, as they referred to in their response to Mx Lamusse's request:

If a prisoner refuses to comply with the instruction to undertake a strip search the officers attempt to de-escalate at every opportunity. In the event that a prisoner refuses to submit to a search, the prisoner may be charged with an offence against discipline, and the search carried out, using reasonable force if necessary in accordance with the Corrections Act 2004.

Jeremy Lightfoot, National Commissioner, Department of Corrections

Unfortunately, in response to this part of my request, Corrections refused saying they do not have this information:

The information that you have requested does not currently exist in a form that can be readily supplied to you, and would instead require initiation of a project to extract, analyse and present the data in the form requested. Therefore, this part of your request is declined under section 18(g) of the OIA, as the information requested is not held by the Department.

Terence Buffery, Acting National Commissioner, Department of Corrections

The ability to use force is clearly one of the powers granted to corrections officers for which there is the most potential for abuse. It's very important that the Department be accountable for its use of force, which I believe is why Section 88 of the Corrections Act sets out requirements for recording the use of force:

  1. Reporting on use of force, weapons, and mechanical constraints

    Particulars of the use of force, non-lethal weapons, and mechanical constraints must, wherever required by regulations made under this Act,—

    1. be recorded; and
    2. be given by notice in writing to the chief executive and to any other person or persons specified in those regulations.

Section 88 Correction Act 2004

I still want to see data on the use of force in strip searches by corrections officers, so I have sent another request to Corrections asking for advice that I could use to request this information in a way that won't be refused because the information doesn't exist in the requested form.

I've also requested the release of the Custodial Practice Manual, which was referenced in the section of the Prison Operations Manual they released saying that it contains instructions on strip searching prisoners.

Transgender prisoners

In Mx Lamusse's original request, some of the questions regarded who prisoners are searched by. In particular, which corrections officers would search transgender prisoners:

  • Are there different rules and regulations for undertaking a strip search of men or women?
  • Who conducts strip searches? I.e. do male officers search male prisoners and women officers women prisoners?
  • Do male or female officers conducts [sic] strip searches on transgender prisoners?

Strip searches in New Zealand Prisons | Ti Lamusse

In their response, Corrections did not directly answer this question. Instead they quoted an extract of Section 94 of the Corrections Act, which states that prisoners may only be strip searched by someone of the "same sex".

Corrections also sent guidance on how transgender prisoners can apply to be transferred if Corrections has placed them in a prison that does not match their gender, which was not requested. This part of their response included text that I have seen used identically in other responses under the OIA (here, for example) so has presumably been copied and pasted between requests:

The Department [of Corrections] is very aware and sympathetic to the particular needs of transgender prisoners including the issues surrounding their placement and safety.

Jeremy Lightfoot, National Commissioner, Department of Corrections

In my opinion, these words seem rather hollow in light of their history of failing trans prisoners.

It's also currently the case that transgender prisoners have fewer rights than cisgender prisoners. Corrections' guidelines on transferring transgender prisoners who have been misplaced into a prison that matches their gender has a list of exceptions:

[Transgender] Prisoners are ineligible to apply for a review of their placement if they:

  • are currently serving a sentence of imprisonment for a serious sexual offence against a person of the prisoner's nominated sex
  • are remanded in custody charged with, or awaiting sentence for a serious sexual offence against a person of the prisoner's nominated sex; or
  • have served a sentence of imprisonment for a serious sexual offence:
    • against a person of the prisoner's nominated sex, and
    • the sentence expiry date is 7 years or less before the date on which the prisoner wishes to make an application

Prison Operations Manual

At first glance these provisions may seem sensible, but remember that they apply exclusively to transgender prisoners. There is nothing to stop, for example, a cisgender man who is serving a sentence of imprisonment for a serious sexual offence against another man from being placed in a men's prison.

Mx Lamusse requested clarification on the question of who strip searches transgender prisoners as a follow up on the same day as Corrections had responded.

Their original request, which had asked this question, had already been extended past the typical 20 working days time limit for OIA requests, and took 35 working days for Corrections to respond. After this follow-up request for clarification, Corrections asked for a further extension and took 27 working days.

So it took a total of 62 working days for Corrections to "make the consultations necessary", as they gave their reason for an extension, and answer the question of who strip searches transgender prisoners. Regardless of the answer, this long delay worries me as it seems unlikely that corrections officers would have this information readily available to them.

When they finally did answer, first to Mx Lamusse then to me two weeks later, here is what they said:

For the purposes of strip-searching, prisoners are to be searched by an officer of the same sex as stated within section 94 of the Corrections Act 2004.

A transgender prisoner placed in a men's prison will be searched by male officers and a transgender prisoner placed in a women's prison will be searched by female officers.

Terence Buffery, Acting National Commissioner, Department of Corrections

This means that, for example, when the Department of Corrections incorrectly places a transgender woman in a men's prison she will be strip searched by male corrections officers. If she refuses the search for this reason, the officers may conduct it using force.

Although it could be said that the wording "same sex", as it is used in Section 94 of the Corrections Act, is ambiguous and may not refer to gender, the Department of Corrections' own guidelines on the treatment of transgender prisoners does not make any distinction between gender and sex. Instead, it refers to a person's "nominated sex".

In my opinion, both this wording and the Department of Corrections' policies regarding transgender prisoners reflects the transphobic and wrong idea that transgender women "aren't really women" and transgender men "aren't really men". If you're new to the concept of people who are transgender and perhaps don't understand it very well yet, then maybe it will help to hear what the Head of the Civil Rights Division of the US Department of Justice has to say:

Here are the facts. Transgender men are men – they live, work and study as men. Transgender women are women – they live, work and study as women.

Vanita Gupta, Head of the Civil Rights Division of the US Department of Justice (transcript here)

*Just another reminder I'm not a lawyer before I discuss some more law stuff.

In New Zealand, the Human Rights Act prohibits discrimination on several grounds, including a person's "sex". In 2004, a member's bill was introduced to add gender identity as one of these grounds of discrimination prohibited by the Human Rights Act, but it was withdrawn in 2006 citing that transgender people were already protected in this way by the prohibition of discrimination on the grounds of sex.

Although it's not mentioned explicitly in the Human Rights Act 1993, this is also reflected on the Human Rights Commission website: (emphasis mine)

The Human Rights Act makes it unlawful to discriminate based on:

  • Sex – includes pregnancy and childbirth, and discrimination against transgender and
  • Sexual orientation – being heterosexual, homosexual, lesbian or bisexual.

Using your rights | Human Rights Commission

As I have explained here, the Department of Corrections discriminates against transgender prisoners due to their gender identity. So it seems to me (and again, I'm not a lawyer) that either it is untrue that transgender people are protected from discrimination on under the Human Rights Act (in which case this needs to be amended), or the Department of Corrections' discriminatory policies regarding transgender prisoners are unlawful.

Mark Hanna (@HonestUniverse) is a web developer by day, and a patient advocate in his spare time. He works through the Society for Science Based Healthcare to combat medical misinformation, in order to protect patients' rights to make informed choices about their healthcare. He also writes a science blog at Sciblogs, and generally tries to do the right thing.

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