Leilani Tafao
Leilani Tafao

Transgender ex-prisoner loses discrimination case

A TRANSGENDER ex-prisoner who claimed a state correctional centre discriminated against her, by constantly referring to her as "him'' or "Mr'', and requiring her to "be a man'', has lost her case.

Leilani Tafao, 39, was born male but says she has lived as a female since she was about 13 or 14, has taken hormone therapy since age 15 and has had partial gender reassignment surgery.

Mark Walters, Director of Southern Queensland Correctional Centre, near Gatton, told a tribunal no one with a penis went to a female correctional centre in Queensland.

He said transgender prisoners, including Tafao, were incarcerated at the male prison when they were "pre-operational''.

Tafao's New Zealand passport identifies her as female and her Samoan birth certificate was changed in 2010 to register her gender as female, but prison documents refer to her as male.

Her discrimination claim said she was criticised for skipping, wearing flowers in her hair, being sexually flirtatious and having feminised behaviour in the Serco Australia jail.

Queensland Civil and Administrative Tribunal was told Tafao had served time in women's and men's prisons in New Zealand and had been in three male prisons in Queensland.

Tafao, who was released from prison in late 2015 and later deported to New Zealand, claimed she was put on discriminatory intensive management plans (IMPs) in the prison in 2015.

The prison said the IMP's goal was to get Tafao to reduce "overtly feminised and sexually laden behaviour'', to maintain safe conditions in a male prison.

QCAT member Anne Fitzpatrick said Tafao identified as female, and lived or sought to live as a member of the female sex, referring to herself and seeking to be referred to by feminine pronouns.

Mr Walters told the tribunal he was not disrespectful to Tafao by referring to her in the male gender, while she was serving a sentence for break and enter.

He said it was consistent with operating a 300 bed high security, male overcrowded complex that had 380 prisoners at the time, including 80 in for murder.

Ms Fitzpatrick accepted that the use of male pronouns offended Tafao's dignity.

However she found Tafao's own safety in an overcrowded prison was a good reason for the prison and its director not focusing on her gender identity, as opposed to her gender.

She said there was no direct discrimination in relation to use of male pronouns and it was not unreasonable to do so, as it complied with the prison's custodial operation practice direction.

"I do not consider that she was being asked in the IMPs to do anything other than moderate sexual behaviours which posed a threat to her own safety in the prison environment,'' Ms Fitzpatrick said.

She found there was no less favourable treatment by the imposition of the IMPs.

Ms Fitzpatrick accepted prison evidence that the IMPs were imposed to curb bad behaviour that threatened Tafao's own safety and the good order and functioning of the prison.

The tribunal heard since 2016, Queensland Corrective Services has instructed officers to refer to prisoners who self-identify as transgender by their preferred name and pronoun, in all communications.

Ms Fitzpatrick dismissed Tafao's claim on November 16.

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