He or she? Inmate at centre of prison gender stoush

 

The State Government and prison operator Serco are appealing a landmark human rights ruling on how it refers to transgender prisoners to the state's highest court, labelling the decision a "substantial injustice".

The ruling in the case of pre-operational transgender woman Leilani Tafao, 41, states that transgender women criminals serving their sentences in male prisons must be referred to by prison staff as "she" and "her", in order to comply with strict anti-discrimination laws.

Leilani Tafao, who is behind bars in a male prison, won the right to be referred to as “she” and “her” by prison staff.
Leilani Tafao, who is behind bars in a male prison, won the right to be referred to as “she” and “her” by prison staff.

 

In two separate appeals filed in the Court of Appeal, both the state government and Serco have applied to overturn the ruling of the Queensland Civil and Administrative Tribunal's appeal's (QCATA) division handed down in May.

The ruling found the state, Serco and Southern Queensland prison director Mark Walters jointly liable for indirect discrimination against Ms Tafao when she was behind bars at the high security male prison in the Lockyer Valley between March and November 2015.

Ms Tafao was in a male prison because she still had a penis after partial gender reassignment surgery in 2002, the tribunal heard.

Ms Tafao argued in the tribunal that the sexual discrimination she experienced in prison when she was referred to as "he" and "him", by prison guards, when she asked to be called "her", offended her dignity and made her feel depressed and suicidal.

She was seeking up to $50,000 in damages but the tribunal earlier ruled that it cannot award damages because there was no "bad faith" by the government or Serco.

The State Government and Serco say the court should have ruled that referring to Ms Tafao as female could have disrupted the “good order of the prison” and put her safety at risk.
The State Government and Serco say the court should have ruled that referring to Ms Tafao as female could have disrupted the “good order of the prison” and put her safety at risk.

Both Serco and the state have asked the court for an order permitting them to abstain from privately apologising to Ms Tafao for using male pronouns, until after the appeal is decided.

"Leave is necessary to correct a substantial injustice on the basis that the decision has the capacity to negatively impact the safety and good order of prisons by erroneously limiting the ability of those operating a corrective services facility ...to determine the mode of address of a transgender prisoner," the State of Queensland's appeal filing states.

In their appeal, Serco and Mr Walters argue that the QCATA finding that they discriminated against Ms Tafao based on her gender should be overturned.

They also argue that the court should have ruled that referring to Ms Tafao as female could have disrupted the "good order of the prison" and put her safety at risk.

Ms Tafao argues that because she identifies as female and seeks to live as a female, she is therefore a female and should be referred to as one by prison staff.

She was born male but has lived as a woman since she was 13 or 14, the tribunal heard.

She is listed as male on her Samoan birth certificate and female on her passport from New Zealand.

She has taken hormone replacements since she was 15 years old and has previously served time in a female prison in New Zealand but asked to be transferred to a male prison because she "found it easier to get along with men", the tribunal heard.

No date has been set to hear the appeals.

Originally published as He or she? Inmate at centre of prison gender stoush


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