If it’s got tackle, it’s a bloke!

On  November 10, 2004, the Victorian Government introduced the Corrections and Major Crimes (Investigative Powers) Acts (Amendment) Act 2004 into the Victorian Parliament. It was given its second reading just one day later. The Act, inter alia, grants unfettered administrative power to the Secretary, Department of Justice, to refuse to permit a prisoner born and incarcerated in Victoria from making an application to the Registrar, Births, Deaths & Marriages to change their name.

While this extraordinary measure is ostensibly directed to assist the Office of Corrections manage one particular prisoner, Paul Denyer, who is now a declared vexatious litigant, it has potentially serious ramifications for others who have a very genuine reason for pursuing such an application.

Denyer is a convicted multiple murderer of women. His crimes have been callous and sadistic in the extreme. He has variously sought to be recognised as a practising Muslim and Christian; he has committed serious crimes even while incarcerated. No right-thinking person could believe his present claims of a female sexual identity and all decent people would support the Government in its rejection of his sick claims in this regard.

From the now very considerable information publicly available about Denyer, it is patently obvious that he is not genuinely experiencing transsexualism, but is instead a sexual sadist gaining gratification from fetishistic cross-dressing fantasies in association with multiple other psychopathologies.

My concern is with the process and its perhaps unintended effects: And my argument is that the ultimate determination of his, or any other prisoner’s, psychological or physical state is a question for medical experts and not one for administrative bureaucrats.

The legislation as it is now framed, by section 47I(2), requires the Secretary to consider various issues before determining to grant an application by a prisoner to change their name, including: whether such a change would constitute a threat to prison security; or jeopardise the safe custody or welfare of any prisoner; or be used for an unlawful activity or purpose; or be regarded as offensive to a victim of crime or an appreciable sector of the community. But there are no safeguards whatsoever in the event the Secretary determines to refuse such an application. There are no proscribed matters to be considered in such an event and no internal review or appeals process, either.

This is bad policy and bad law that leaves the most vulnerable prisoners in the system without an avenue of recourse - those who are genuinely experiencing transsexualism.

It is the policy of Corrections in Victoria and the other States that, “if it’s got tackle, it’s a bloke”. This has resulted in women with transsexualism who, in some cases, have been on hormone therapy for years and have had facial surgery and breast augmentation, but not rehabilitative genital surgery, being sent to the male prison system on conviction. Further, because they are deemed “vulnerable” they are placed in the “Protection” unit of the respective prison - along with convicted sex offenders and often in the same cell with up to three such men. It is hard to escape the conclusion that the authorities take the view that the offender has been a street worker anyway, so it’s okay for them to face the inevitable prospect they will be raped in these circumstances.

These women often have not gone through the process of effecting a legal change of name because of their drug addiction problems and the depressing cycle of abuse that constitutes their lives in an unaccepting society. Prison gives them, at least, some time out. They can sort through their issues and commence those steps that might build their self-esteem and have some chance of making it on the outside, including the correction of their status details on legal documents.

Five years ago, I represented a prisoner held in the male prison system who had been seeking for several years to be granted permission to commence a course of hormone treatment for transsexualism. It took more than two years of argument and the referral of a discrimination complaint to the Victorian Civil and Administrative Tribunal (VCAT) before the Commissioner would agree to have an expert assess her. That assessment, when it finally took place, validated her complaint.

It took another year, and three sessions of mediation at the Tribunal, before treatment was commenced. At the mediation, the Commissioner (now the Secretary that the subject legislation empowers to decide these matters) undertook to complete and implement a policy for the management of transsexual and intersex prisoners. That has not yet been done.

Transsexualism is known widely by medical experts as a medical condition: another of the various biological variations that may occur in human sexual formation. This is the position that led to people with transsexualism, after appropriate treatment, being accepted as members of their affirmed sex for all purposes under the common law of Australia. The decision as to whether or not a particular convicted prisoner is experiencing transsexualism should similarly be informed by medical experts and the rights of individuals should not be abrogated on the whim of a bureaucrat.

Deciding a claim of transsexualism on medical grounds protects the Government through its Department, and the rare prisoner who may have a valid diagnosis of transsexualism.

How did they get it so wrong?