An intersex prisoner, who identifies as female, was placed in a male prison where she was exposed to "ridicule" and "cruel and degrading treatment", despite a magistrate recommending she be taken to the women's prison, a tribunal has heard.
The woman has lodged a discrimination complaint against the Department of Correctional Services (DCS) and the Central Adelaide Local Health Network (CALHN) saying they contravened the Equal Opportunity Act in services they provided to her.
The woman was born as an intersex person and was assigned female at birth, but as a child was given a male name and transitioned to a male identity.
From about 2014, the woman transitioned to female and undertook hormone replacement therapy.
She has an official Australian certificate confirming her gender as female.
In February 2019, the woman was arrested and remanded into custody.
The magistrate court made orders noting that she identifies as female and recommended that she should be taken to a women's prison, but the Department of Correctional Services instead took her to Yatala — a male prison in Adelaide.
In Yatala, the woman claimed she was exposed to ridicule and cruel and degrading treatment.
She was later admitted to the Royal Adelaide Hospital and then Glenside Hospital before being discharged on home detention bail in March 2019.
The charges were later withdrawn.
In 2020, the woman was charged with further offences and remanded in custody.
She was initially taken to the Adelaide Women's Prison before being removed and transferred to Yatala.
While in Yatala, the woman claims a male guard asked her inappropriate questions about her genitalia and she was referred to as "he" or "it".
She said she was also strip searched and held in solitary isolation.
The woman claimed she was subjected to further ridicule from other prisoners and was threatened with rape by another prisoner.
In her discrimination claim against CALHN, the woman said she was subjected to invasive medical examinations without consent and against her wishes and she was denied access to medication including relevant hormones and anti-depressants.
Both government departments applied to have the complaint struck out, claiming there was a lack of detail about when the "alleged contraventions occurred, who performed or failed to perform them, and how they constituted 'services' within the meaning of the EO Act".
"No service is provided when deciding that the complainant was to be placed in Yatala," the application states.
"Inadequate particulars are provided as to dates and times of the comments made by guards, but in any event at the time of making such comments no service was provided.
"In terms of medical examinations, it is not clear what the 'service' is … adopting a policy is not a 'service' … strip searches are not a 'service'."
But the South Australian Civil and Administration Tribunal dismissed the departments' application for the complaint to be struck out, finding that the case has merits.
Prison's own policy urges against discrimination
The tribunal found the department's own 'Transgender and Intersex Offenders Prison Policy' document "acknowledges the need to pay attention to the needs of transgender and intersex prisoners, including references to topics such as the need to treat offenders humanely and with dignity".
The policy states that transgender and intersex prisoners should not be subjected to ridicule or humiliation and that they should be given appropriate underwear on request and ensured privacy with access to shower and toilet facilities.
The policy also includes what should be considered when deciding whether an intersex person should go to a male or female prison.
"It will be unlawful discrimination if a transgender prisoner is accommodated less favourably than non-transgender prisoners just because of the gender they identify," the policy states.
"This means that it is necessary to treat a prisoner who decides to live permanently in their non-birth gender according to their chosen gender unless there is compelling reason for doing otherwise.
"The ideal approach is to accommodate a transgender woman with women prisoners and a transgender man with male prisoners."
The tribunal also noted that the policy specifies that the prison officers present during strip searches need to be the same sex as the prisoner.
"In that regard the question is not decided just by reference to genitalia but also on genuine self-identification," the policy states.
In a statement, a spokesperson for DCS said "thorough assessment and planning" is undertaken when a transgender prisoner is admitted to custody to ensure "appropriate placement and supports are in place".
"DCS is committed to meeting the needs of transgender and intersex offenders and prisoners, while seeking to ensure their safety and the safety of others is not compromised," the spokesperson said.
"The department's relevant policies ensure transgender and intersex offenders and prisoners are treated with equivalent respect and dignity that is accorded to all offenders.
"Given this matter is still before the court, no further comment can be made."
SA Health said it was unable to comment on matters currently before the tribunal.
The case will be back before the tribunal at a later date.
