In this submission we have addressed a number of issues within two topics and the Corrections criteria in our feedback.

All feedback is underpinned by our conviction that males identifying as women who are placed in the women’s prison estate should be classified as extreme threat prisoners in the context of the potential threat they pose to incarcerated women.

Male prisoners in the women’s prison estate represent a serious violation of the human rights of women.

As stated by Patricia Craven, a former prison governor at HM Prison Service, England and Wales, the Women’s Rights Party also agrees that reasonable accommodations should be made for male prisoners who identify as women. Craven also highlights that for “terrified, invisible women locked in a closed facility with no means of removing themselves from the very cause of their anxiety, care, common sense and change are needed¹”.

• enabling clear, independent decision-making about which prisoners are designated as extreme threat prisoners, and ensuring that independent review and assurance mechanisms are in place, and
• creating a statutory framework around who constitutes an extreme threat prisoner to increase transparency.

• establishing a security classification framework for extreme threat prisoners that accounts for enduring risk
• tailoring the segregation framework for extreme threat prisoners that responds to enduring risk and the fact of long-term segregation
• ensuring clarity about what constitutes ‘meaningful human contact’ to help custodial staff better identify how to mitigate against solitary confinement
• considering additional support for extreme threat prisoners on long-term segregation to mitigate negative impacts, and
• establishing management plans to give visibility and structure to prisoner progression.

1.0: Clear independent decision making about which prisoners are designated “extreme threat” needs to consider the threat that all male prisoners pose to females when they are housed in the women’s estate. Single sex prisons are essential for the dignity, privacy and safety of women in prison.

1.1: Transparency about issues that have arisen in the women’s estate due to male prisoners being housed with women is necessary to establish a coherent framework for dealing with male criminals who identify as women, and to enable clear decision making which takes into account women’s rights, and how they are violated when men are housed in women’s spaces. Unfortunately, there appears to be limited data available about these issues in New Zealand.

1.2: The Women’s Rights Party considers that any male criminal who is placed in a women’s prison represents an extreme and unacceptable threat to incarcerated women.

1:3: The Women’s Rights Party understands that the current Correction’s definition of “extreme threat” prisoners will not include all male criminals who identify as women. However, to be clear, we consider that all male prisoners in women’s prisons pose an “extreme threat” to women.

Improved management of extreme threat prisoners

2.0: The Women’s Rights Party suggests that while establishing a security classification framework for extreme threat male prisoners, the correct sex classification must also be taken into account.

2.1: The segregation framework could include the potential need to segregate a man who is identifying as a woman in a safe and secure space within the men’s prison estate.

2.2: The Women’s Rights Party considers that the safety of all prisoners is paramount, but placing a male in a women’s prison is not the answer to a safety issue for a male who is identifying as female and who is concerned about his personal safety in a men’s prison.

2.3: Meeting the needs of these male prisoners and ensuring their safety is a challenge which the male estate must solve.

2.4: There is no substantial evidence to support a prison placement policy that permits transgender prisoners to choose the prison in which they will serve their time².

The Women’s Rights Party also acknowledges the criteria that Corrections has used regarding the options and the status quo in prisons, which are described as:

• Promotes better prisoner outcomes: the extent to which the option will support better outcomes for prisoners, including supporting their wellbeing and access to rehabilitative programmes and services.
• Practical to implement: the ease of implementation and the extent to which the options can adapt to changes over time.
• Transparency and accountability: the extent to which the option supports transparency about the management of extreme threat prisoners and provides accountability for this management.
• Upholds human rights obligations: for example, rights contained in the New Zealand Bill of Rights Act 1990 (NZBORA), the Privacy Act 2020, and the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), and other international obligations and standards.
• Contributes to safety: the extent to which the option contributes to safety, which could include the safety of prisons, including for staff and prisoners, or the safety of New Zealand or the international community. This includes preventing further involvement in serious violent or criminal activity.
• Contributes to better outcomes for Māori: the extent to which the option will tangibly improve outcomes for Māori in the corrections system as well as whānau and communities.

• While the Women’s Rights Party fully supports better outcomes for all prisoners, including supporting their wellbeing. However, it must be recognised that this cannot be achieved at the expense of women’s safety, dignity, and rights.

• We support the NZ Bill of Rights Act 1990 (NZBORA), the Privacy Act 2020 and the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) and other international obligations and standards. Women have human rights which are violated when a male prisoner is placed in a women’s prison.
• The Convention for the Elimination of Discrimination Against Women (CEDAW) describes how discrimination against women violates the principles of equality of rights and respect for human dignity and that appropriate measures should be taken to provide effective protection against any acts of discrimination.³
• The Convention against Torture & Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) was adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984 and entered into force on 26 June 1987. New Zealand ratified the CAT on 10 December 1989.⁴⁵
• The term “torture” in CAT includes reference to any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person based on discrimination of any kind.
• Article 16 of the CAT states: “Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”.
• The Women’s Rights Party considers that placing a male criminal offender in a women’s prison amounts to discrimination against women that will inflict emotional pain, create a threat to physical safety, and create fear, distress, and intimidation. We consider this to be a breach of women’s rights, humanity, dignity and safety. In effect – this is torture, and it is unacceptable.
• Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.⁶
• The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) stress the importance of keeping men and women in separate facilities to ensure dignity, safety and wellbeing.⁷
• The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) stresses that women are often more vulnerable to abuse, harassment and violence.
• The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) highlight the need for safeguarding all prisoners from violence, abuse, and exploitation. Women prisoners are especially vulnerable to sex-based violence, and women should be protected from such risks in custody. This includes sexual violence, harassment, and exploitation by other inmates.
• The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) outline how women prisoners may have specific concerns regarding hygiene, access to feminine products, and safe spaces, all of which need to be addressed in prison facilities. Safe spaces where dignity and privacy are paramount are not possible to achieve when male prisoners are incarcerated with women.
• The United Nations Rules for the Treatment of Women Prisoners and Non- custodial Measures for Women Offenders (the Bangkok Rules), were adopted by the United Nations General Assembly on 21 December 2010.⁸
• The Bangkok Rules acknowledge that violence against women has specific implications for women’s contact with the criminal justice system, as well as their right to be free of victimization while imprisoned.
• The Bangkok Rules state that physical and psychological safety is critical to ensuring human rights and improving outcomes for incarcerated women.
• NZBORA⁹ provides a broad framework for the protection of all human rights. Section 19 of the NZBORA and the Human Rights Act 1993¹⁰ states that everyone is equal before the law and entitled to the equal protection of the law, without discrimination on grounds such as sex, race, marital status, and other characteristics. This is crucial for protecting women’s rights in various contexts, including in the legal system and in prison. Sex is a protected characteristic.
• Section 8 of the NZBORA protects the right to life, which is particularly significant for women, especially in the context of domestic violence, and sexual violence. Women in prison often have past and recent experiences of abuse and sexual violence, and the possibility of being exposed to further male violence from male prisoners in prison is unconscionable.
• Women may be too afraid of punitive repercussions to complain about issues they experience related to male criminals in female spaces.
• Women prisoners, compared to male prisoners, are more likely to have histories of abuse and neglect and have greater incidents of substance abuse and mental health concerns.¹¹
• Women in prison rarely have any opportunity to choose who they share spaces with and many women in prison live in close proximity to each other. Being forced to share what should be single sex spaces with a male violates the human rights of incarcerated women and could be considered cruel and unusual punishment.
• A person does not lose their human rights when imprisoned.¹²
• All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.¹³

• There have been several reports of women being exposed to sexually threatening behaviour, sexual exhibitionism, assault, and sexual assault by men identifying as women in women’s prisons (See Appendix 1).
• Women should be housed in female only prison facilities that are separate from male prisoners and male prisons. This is critical for preventing sexual violence and other forms of sex-based abuse.

• The Women’s Rights Party supports measures that contribute to better outcomes for Māori and points out that the majority of incarcerated women in New Zealand are Māori. Māori women aged 20-60 years comprised 15% of the general New Zealand population in June 2020, but for Māori women in prison the figure was 61%.¹⁴
• The ‘Women in Prison: New Zealand’¹⁵ report from the Human Rights Commission (HRC) recognised the over-representation of Māori women in prisons and noted that Corrections was “not acting with the necessary urgency to address the harms to women experienced under the current system which is not adequately equipped to address the specific needs of women in prison”.¹⁶
• Māori women prisoners deserve conditions that contribute to their safety, dignity, and wellbeing. These conditions are not met when a male prisoner is incarcerated in a women’s prison.
• The HRC report also notes that promoting personal dignity and wellbeing is critically important for imprisoned women, given that many have experienced sexual violence, exploitation and victimisation. These traumatic experiences need to be taken into account, and it is obvious that housing male prisoners in women’s prisoners does not contribute in any way towards women’s wellbeing and could be considered a potential extreme threat to safety and wellbeing.
• The HRC report states: “To mitigate the harmful effects of detention, women require adequate protection and support and should not be subjected to measures which are likely to exacerbate their distress.”¹⁷

The Women’s Rights Party hopes that our submission has raised awareness of the issues that need to be addressed within the prison related to the extreme threat male prisoners pose to women prisoners.

The UK Keep Prisons Single Sex (KPSS) highlight in written evidence to the UK Parliament¹⁸ the fact that it is accepted throughout the criminal justice system that female offenders do best in environments away from males.

The Corston Report (2007) reached this conclusion and stated that the fundamental differences between male and female offenders and those at risk of offending meant a distinct approach was needed for women.¹⁹ The Corston Report also stated that female-only spaces and services were vital to enable female offenders to tackle the complex issues around their offending.

The KPSS group obtained information from prison officers who revealed that female prisoners felt unsafe and at risk. They were confronted with sexualised behaviour, aggressive behaviour, sexually-threatening behaviour and had to contend with males in their intimate living accommodation, including shower facilities with doors that were unlockable and could be looked over.

Issues that are becoming more apparent in the UK in terms of the conflation of sex and gender should be taken seriously.

As Murray Blackburn Mackenzie point out, the “police and other criminal justice agencies have lost sight of sex as a key determinant of offending, via the quiet introduction of unstable policies that variously provide for recording based on a person’s self-declared gender identity, gender presentation, and sex”.²⁰

The Women’s Rights Party recommends consideration of these issues as it is important for legislators and policy makers to make evidenced-based decisions to ensure the serious and detrimental impact on women prisoners is understood and taken seriously.

The Women’s Rights Party finds it unacceptable that no impact assessment has been conducted either prior to, or subsequent to the implementation of the policy of housing male prisoners identifying as women in the female estate. This represents a major and ongoing serious breach of the rights of women’s prisoners.

Thank you for the opportunity to present this written submission. We would welcome the opportunity to make an oral submission.