It is not unusual that a transwoman gets sentenced to serve time in a men's prison. It is, unfortunately, rather the norm.
Glen Cooper was sentenced on Wednesday to serve two years and one month in prison upon conviction on a charge of wounding with intent to injure for striking a man over the head with an unopened wine bottle during an argument.
New Zealand Department of Correction policy requires that Cooper serve her time in a men's prison because she has not yet had surgery.
Cooper's lawyer, Kelly Ellis of TransAdvocates, revealed to the press that Whangerei District Judge Duncan Harvey reduced the sentence by 15% in recognition of the abuse her client will experience in the prison because she is a transwoman. Cooper has already been attacked in prison during her pretrial confinement and is now locked in her cell 23 hours a day for her own protection.
Ellis had asked the judge to for a reduced sentence so that Cooper could serve her time under house arrest rather than a men's prison, where she would be at great risk of abuse.
[The Judge] appreciated it wasn't special treatment for trans prisoners, but equal treatment.
But, of course, treatment and support are multi-faceted and without a family to back her up, this outcast client had no home. Home detention requires, of course a home.
Two years was the cut-off for home detention. But by adding the month to the sentence, Cooper becomes eligible for parole earlier.
This is a person who is in need of much assistance and it is not happening. There's not much it seems I can do about it or the court can do about it.
I think realistically the law evolves slowly but it's been great to advance a case like this in front of such a receptive judge, who gave us a very good hearing.
Judge Harvey also called the New Zealand Department of Corrections policy of refusing to allow transgender prisoners to begin hormone treatment while in custody appalling.
This court has no power over Corrections policy but, in my view, it's an appalling policy but it is one I'm powerless to do anything about.
The policy of denying medical treatment for a recognised medical condition is cruel and inhumane.
Certainly it's a breach of human rights and it just puts that prisoner at considerable risk but also they're going to probably be segregated which is not of their making, it's something that's imposed on them.
--Kim Workman, director of Rethinking Crime and Punishment
Workman suggested that there needs to be a separate facility for transgender prisoners.
Prison reformer Peter Williams QC says the Department of Corrections is failing in its job of keeping prisoners safe as a big proportion of jails are now controlled by gangs.
Cooper will be eligible for parole after serving about 250 days.
Judge Harvey added a note for the Parole Board:
In my view, it's absolutely crucial upon release everything needs to be done to get counseling and treatment. If you don't, there is a chance you will remain a danger to society.
In the wake of the sentence Green MP Jan Logie is urging the New Zealand Government to take action.
Having judges hand out reductions in sentences is not an effective or sustainable solution.
In the United States, it is possible for trans people to go to their prison of choice and Italy has a separate prison for trans people.
The option to choose appears to be the simplest logistically. But until a permanent solution is reached we could make home detention more available for trans prisoners who are at risk of violence.
For the State to knowingly put any person in its care into danger is inexcusable.
There are solutions available and we need to make changes to keep trans people safe from violence in New Zealand, including when they are in the State’s custody.
Ellis has also been working on another case where she claims when a trans woman was remanded on bail for sentence, she was put in a cell on her own, before a gang member was put in there with her.
He sexually violated her. This happened a few metres beneath my feet. Anyone who doubts the dangers trans women face in men's prisons really needs to spend some time at the coal face.
These two cases have represented a long haul and while we might not have got all we wanted, there is now persuasive precedent which recognises the refusal to initiate treatment in prison as a mitigating factor.
In the process a couple of judges, their clerks and registrars, prosecutors and the public have been give an intensive Trans 101, which can't be a bad thing.