1G Te Tikanga Whakawa: Justice System

The right to justice requires equitable and fair legal processes that provide redress for trans people who face discrimination and harassment, and protect their broader legal rights. Police and prison facilities are sex segregated and present challenges for trans people who are arrested, tried or imprisoned.

Police

Submitters reported a lack of clarity about police procedures for establishing gender identity, which in turn affected sex-specific practices including body searches and placement in holding cells.

A number of submitters described being questioned by Police at checkpoints because their driver’s licence details did not match their physical presentation. Submitters appreciated it when these exchanges were handled sensitively. However, in other examples, they were treated with suspicion.

Some submitters had approached police after being harassed when people knew or thought they were trans. Those in small provincial towns felt particularly vulnerable, feared additional exposure and did not know where to seek support. A number considered that local police had not considered their complaints seriously. A submitter from a major city was verbally harassed on a regular basis. She eventually complained to the Police. Their intervention stopped the behaviour, which the submitter attributed to a clear message that persistent harassment was illegal.

The Inquiry received submissions describing how trans women were chased in the street by police, referred to by their previous male names and addressed as Mr, searched by male police officers and held in prison cells with male prisoners. Some submitters spoke positively about recent changes in the relationship between police and trans people, including trans people’s participation in police training sessions.

Courts

As outlined later in this document, the majority of trans people were not able to legally change their sex on their birth certificate. This raised the issue of recognition of the new gender identity by courts if a trans person was arrested or appeared as a witness. Two employment lawyers described the vulnerability of trans people in legal hearings. They considered it difficult to keep a client safe from prurient questions from counsel unless judicial officers established and maintained boundaries throughout the hearing.

Submitters were concerned that they might be treated unfairly in Family Court processes. For some, this was based on personal experience (in domestic violence as well as custody and access cases). Two submitters who had appeared before the Family Court considered their gender identity had been raised inappropriately by lawyers, Counsel for Child, a Court Registrar and a court appointed psychologist. Others had been threatened by partners, ex-partners or family members that they could lose access to their children or grandchildren because they were trans.

Department of Corrections

The Department of Corrections has a national policy on transgender prisoners. Those submitters with experience visiting trans inmates or providing support when people left prison, had a good relationship with prison staff. Concerns remained about the potential vulnerability and isolation of trans inmates. One submitter said these were heightened if transgender inmates were moved between prisons (in some cases due to harassment by other inmates) and/or sent to parts of the country where they had no family or community support.

The Inquiry acknowledges the complex issues around sex segregated facilities such as prisons. The inability for most trans people to legally change sex means a trans woman is likely to be housed in a male prison and a trans man in a female prison. The Inquiry received submissions from trans women, Queens, whakawāhine and fa

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