M.03.05 Transgender and intersex prisoner

Please note the definitions that apply to staff. Gender: Describes a person’s identity. While many consider gender to be binary (male or female) it is a spectrum. Gender is distinct from a person’s assigned sex and one can identify with a gender at any point on the spectrum or outside of it altogether. Sex: Refers to physical characteristics of a person which is determined by genitalia and chromosome composition. People are assigned a sex at birth based on these physical characteristics. For more information, contact your local Senior Adviser Inclusion and Diversity to request the Rainbow Diversity session.

These procedures provide flexibility in determining the most appropriate accommodation options for transgender and intersex prisoners.

M.03.05.01 Initial determination of prisoner’s placement

1. If staff have doubts relating to a prisoners sex (i.e. are they in the correct gender prison), they must advise the custodial systems manager or on-call manager, who must make an initial determination on the prisoner’s placement.
   Note: Doubt can arise at any time and occur a number of ways including: something the prisoners says; information from a third party (e.g. NZ Police, birth certificate, or other documentation); observations.
2. When making the initial determination of a prisoner’s placement, the custodial systems manager or on-call manager must take into account all the available information, including consulting with Health Services. The custodial systems manager or on-call manager may consider any of the matters;
   1. the prisoner’s nominated sex; and
   2. any evidence provided by the prisoner about whether, and if so, for how long, the prisoner has lived as a person of the nominated sex; and
   3. any evidence provided by the prisoner about whether the prisoner intends to live permanently as a person of the nominated sex; and
   4. the advice of -
      1. a senior employee of the department who has responsibility for custodial services; and
      2. a senior employee of the department who has responsibility for health services for prisoners; and
      3. any other person that the chief executive considers has relevant expertise; and
   5. any advice from a medical practitioner who has seen the prisoner; and
   6. any evidence provided by the prisoner about whether the prisoner has undergone, or is undergoing, medical treatment to acquire a physical conformation that accords with the gender identity of a person of the nominated sex; and
   7. the safety and well-being of the prisoner; and
   8. the safety and well-being of the other prisoners (of either sex) with whom the prisoner may be accommodated; and
   9. the security of the prison; and
   10. whether any determination could make it more likely that the prisoner will be segregated from other prisoners in accordance with [section 57 to 60 of the Correction Act 2004]; and
   11. the likely effect of any determination on the prisoner’s rehabilitation, including the prisoner’s access to special treatment programmes; and
   12. any other matters raised by the prisoner.
3. If the initial determination on the prisoner’s placement differs from the warrant and would require the prisoner to be moved to a prison that manages prisoners of a different gender, the custodial systems manager or on-call manager must:
   1. advise the prisoner that they will be transferred to another prison and the reason, and
   2. provide the prisoner with a copy of [M.03.05.Form.01 Information for transgender and intersex prisoners].
4. If it is determined that the prisoner is in the correct prison, and the prisoner is eligible to apply for a review, the custodial systems manager or on-call manager must provide the prisoner with a copy of [M.03.05.Form.01 Information for transgender and intersex prisoners].
5. The custodial systems manager or on-call manager must:
   1. update IOMS with "Transgender" Alert, and
   2. record in the Alerts Comment box the decision on initial placement and all the information that was available to inform that decision.

M.03.05.02 Criteria to apply for review of initial determination

1. Prisoners are not eligible to apply for a review of the initial determination of their placement if they:
   1. are serving a sentence for serious sexual offence (refer POM [M.03.05.Res.01 Schedule of serious sexual offences]) against a person of the prisoner’s nominated sex, or
   2. are on remand for a serious sexual offence against a person of the prisoner’s nominated sex, or
   3. have previously served a sentence of imprisonment for a serious sexual offence:
      1. against a person of the prisoner’s nominated sex, and
      2. the sentence expiry date for that sentence was within 7 years ago or less.
2. If the prisoner requests to review the initial determination and is ineligible, staff must:
   1. advise the prisoner the reason they are not eligible (e.g. disqualifying offences), and
   2. update IOMS with “Placement review declined” Alert, and
   3. record in the Alert’s comment box the reason the prisoner is ineligible.

M.03.05.03 Application for review of initial determination

1. If the prisoner is eligible and requests to apply for a review of their placement under the initial determination, the prisoner must be provided with a copy of [M.03.05.Form.02 Application for review of prisoner’s placement]. Staff must inform the prisoner that:
   1. they should complete all sections of [M.03.05.Form.02 Application for review of prisoner’s placement], and
   2. staff will assist them if they need assistance, and
   3. that the information contained in the application will only be used for the purpose of the review, and
   4. if they request, their completed application can be placed in a sealed envelope, when forwarded to the general manager custodial.
2. Once the prisoner has completed the application, staff must:
   1. update IOMS with the “Placement Review filed” Alert and update the “Review Application” Case notes with relevant information, and
   2. forward the completed application to the general manager custodial.

M.03.05.04 Evaluation of initial determination

1. On receipt of the completed [M.03.05.Form.02 Application for review of prisoner’s placement], the general manager custodial must make a copy of the application and provide it to the prison’s health centre manager.
2. The general manager custodial must complete the [Introduction section and Part A: Prison management considerations of M.03.05.Form.03 Review application recommendations] and forward to the Director Office of the Commissioner Custodial Services (with a copy of [M.03.05.Form.02 Application for review of prisoner’s placement] and relevant supporting documents).
3. The health centre manager must complete [Part B: Health Centre Management considerations of M.03.05.Form.03 Review application recommendations], and forward to the Director Offender Health (with a copy of [M.03.05.Form.02 Application for review of prisoner’s placement] and relevant supporting documents).
4. The Chief Executive will personally determine the review. The Director Office of the Commissioner Custodial Services and the Director Offender Health must provide the Chief Executive with:
   1. a joint report recommending whether the initial placement determination should be confirmed, or that the prisoner should be relocated to a prison accommodating prisoners of the opposite sex to that initially determined, or that no agreement can be reached, and
   2. a copy of [M.03.05.Form.02 Application for review of the prisoner’s placement] and [M.03.05.Form.03 Review application recommendations] and relevant supporting documents.

M.03.05.05 Decision on review of initial determination on prisoner’s placement

1. The Chief Executive or the Commissioner Custodial Services will advise the Director Office of the Commissioner Custodial Services and Director Offender Health of their decision (and reasons) using [M.03.05.Form.04 Decision on determination of prisoner’s placement]. The decision will either:
   1. confirm the initial placement, or
   2. determine that the prisoner should be placed in a prison managing prisoners of the nominated sex.
2. The Director Office of the Commissioner Custodial Services will forward to the general manager custodial and the Director Offender Health will forward to the prison health centre manager a copy of the completed [M.03.05.Form.04 Decision on determination of prisoner’s placement].

M.03.05.06 Application for review granted

1. If the application for review is granted, the prisoner is to be:
   1. immediately advised, and
   2. provided a copy of [M.03.05.Form.04 Decision on determination of prisoner’s placement], and
   3. transferred to a prison that manages prisoners of the nominated sex.
2. Staff are to update IOMS with the “Placement Review Granted” Alert and update the “Review Application” Case notes with relevant information.

M.03.05.07 Application for review declined

1. If the application for review is declined, the general manager custodial upon being advised of the decision, will arrange for the prisoner to be:
   1. advised that the initial placement has been confirmed.
   2. provided with a copy of the completed [M.03.05.Form.04 Decision on determination of prisoner’s placement].
   3. informed that if the prisoner is not satisfied with the decision, they can lodge a complaint with the Inspector and/or Ombudsman.
2. If the application was initiated by a birth certificate that did not record the prisoner’s sex as male or female, staff must advise the prisoner that they can request a review by the Chief Executive of the further placement decision.
3. Staff must place all documents on the prisoner’s file and update IOMS:
   1. with the “Placement Review declined” Alert, and
   2. “Review Application” Case notes with relevant information

M.03.05.08 Review of Commissioner Custodial Services decision on determination of a prisoner’s placement

1. If the prisoner requests a review of the Commissioner Custodial Services decision the prisoner must be provided a copy of [M.03.05.Form.05 Review of Commissioner Custodial Services placement decision].
2. Once the prisoner has completed the application with any assistance they require, staff must update IOMS:
   1. with the “Placement Review filed” Alert, and
   2. “Review Application” Case notes with relevant and related information, and
   3. forward the completed application to the Director Office of the Commissioner Custodial Services.
3. Upon receipt of the completed of [M.03.05.Form.05 Review of Commissioner Custodial Services placement decision], the Director Office of the Commissioner Custodial Services will forward to Chief Executive as soon as reasonably practicable copies of:
   1. [M.03.05.Form.02 Application for review of prisoner’s placement]
   2. [M.03.05.Form.03 Review application recommendations] (joint report)
   3. [M.03.05.Form.04 Decision on determination of prisoner’s placement]
   4. [M.03.05.Form.05 Review of Commissioner Custodial Services placement decision].

M.03.05.09 Advice of Review of Chief Executive’s decision on determination of a prisoner’s placement

1. If the review of the Commissioner Custodial Services decision is granted, and the prisoner’s placement is opposite to that determined by the Commissioner Custodial Services, staff must complete the procedures in [M.03.05.06 Application for review granted] as if the Commissioner Custodial Services determination was the initial determination.
2. If the review of the Commissioner Custodial Services decision is declined and confirms the placement determined by the Commissioner Custodial Services, the general manager custodial will arrange for the prisoner to be:
   1. advised that the Commissioner Custodial Services placement decision has been confirmed
   2. provided with a copy of the completed [M.03.05.Form.04 Decision on determination of prisoner’s placement].
   3. informed that if the prisoner is not satisfied with the decision, they can lodge a complaint with the Inspector and/or Ombudsman.
3. Staff must place all documents on the prisoner’s file and update IOMS:
   1. with the “Placement Review declined” Alert, and
   2. “Review Application” Case notes with relevant information.

M.03.05.10 Revocation of determination of prisoner’s placement

1. Where a placement decision has been made by the Chief Executive on application by the prisoner (which does not include decisions made by the Commissioner Custodial Services), the general manager custodial must promptly apply to the Chief Executive to revoke the determination of the prisoner’s placement if the prisoner is charged with a serious sexual offence against a person of the same sex as the prisoner’s nominated sex.
2. The general manager custodial should complete [Part A: of M.03.05.Form.06 Revocation of determination of prisoner’s placement] and forward to the Chief Executive to complete [Part B: Decision of the Chief Executive of the Department of Corrections].
3. If there are reasonable grounds, that one or more of the factors on which the determination was based have changed to such an extent that the determination is no longer appropriate, the general manager custodial should complete [Part A: of M.03.05.Form.06 Revocation of determination of prisoner’s placement] and forward a copy to the Director Office of the Commissioner Custodial Services and the Director Offender Health.
4. The Director Office of the Commissioner Custodial Services and the Director Offender Health will forward a joint report to the Chief Executive recommending whether the prisoner’s placement should be revoked or not. The Chief Executive will then make a decision as to whether the determination is still appropriate or is now no longer appropriate and will complete [Part B: Decision of the Chief Executive of the Department of Corrections of M.03.05.Form.06 Revocation of determination of prisoner’s placement].
5. If the Chief Executive revokes the determination the prisoner:
   1. is to be immediately advised, and
   2. is provided with a copy of [M.03.05.Form.04 Decision on determination of prisoner’s placement], and
   3. is provided with a copy of [M.03.05.Form 06 Revocation of determination of prisoners placement], and
   4. is transferred to an appropriate prison that manages prisoners of the same sex as the determination that preceded the review by the Chief Executive.
6. Staff must place all documents on the prisoner’s file and update IOMS:
   1. with the “Placement Review declined” Alert, and
   2. “Review Application” Case notes with relevant information.

Related Links

• M.03.05.Form.01 Information for transgender and intersex prisoners
• M.03.05.Res.01 Schedule of serious sexual offences
• M.03.05.Res.02 Transgender prisoners flow diagram