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SocietyMay 16, 2024

Deadnaming, insults and harassment: trans Corrections officer brings landmark human rights case against employer


Exclusive: A transgender man is bringing an unprecedented human rights case against the Department of Corrections. He tells Alex Casey about his experience at work and what he’s fighting for. 

This story contains transphobic language and references to self-harm. Take care. 

A trans Corrections officer is taking a case against his employer to the Human Rights Review Tribunal after his experience of discrimination, harassment and bullying at work. This includes being regularly mocked, deadnamed and misgendered by his Corrections colleagues, and having a lack of clarity around his duties due to his gender identity. 

The landmark case represents the very first time that a transgender person will be at the centre of a discrimination case based on sex, and will test whether or not gender diverse people are adequately protected under the Human Rights Act, which has remain unchanged since 1993.

Adam* knew he was different from the other girls from a very young age. It wasn’t just that he was into cars and trucks and preferred to shop in the boys department, or that he insisted on wearing his Thomas the Tank Engine gumboots with his dress. It was that even when he was just a toddler, he recalls being deeply distressed by the fact that he wasn’t a boy. “I remember comparing myself with another boy and noticing he was different to what I was, and I just burst out in tears,” he says. “I believed I was broken.”

During his high school years, Adam says that puberty had a “massive effect” on his mental health. When he began developing breasts, he bought bras that were far too small to act as binders, and hated using the female changing rooms. “I was just constantly in this space of ‘this is not how my body should be working’,” he says. That confusion turned into frustration, which turned into anger, depression and self harm. “You just start to think ‘what’s the point of being on the planet if you can’t even be yourself?”

After finishing high school, Adam says he felt totally aimless when it came to both his identity and his future. “I had no idea what the heck I wanted to do with my life,” he says. “Someone in my family was working for Corrections at the time so I just got thrown into it and never left.” Beginning his career as a female corrections officer in a North Island prison in 2017, he remembers initially being treated like a weak girl. “Typical in that environment,” he says. “Until you prove them wrong.” 

The duties of a Corrections officer can include running unlock, prisoner safety searches, and using “control and restraint” when required. “I describe it like being a police officer on the inside,” he says. “It’s a pretty high risk environment and you’ve got to be alert at all times.” Because of the unique and sometimes dangerous environment, he says people in his line of work tend towards a certain mindset when it comes to personal matters: “you can’t let what’s happening on the outside affect you when you’re working on the inside.”

But early on in his Corrections career, Adam had started a personal journey that would change the course of his life. He had started seeing a counsellor, who suggested that he head along to a community group for gender diverse people. There, he says the “puzzle pieces” of his identity quickly came together. “I got a real education from them and got to know lots of other trans and non binary people,” he explains. “That’s when I was like, ‘hold on a minute. I’m just like you. So if I had to put myself in a category: I must be trans’.” 

He first came out to his mum as a transgender man in 2021. “It was terrifying, because I didn’t know what reaction I was going to get,” he says. “But she just turned around and said ‘your whole childhood just make sense now’.” His close family and friends were much the same: “a lot of them just went ‘oh sweet – we already knew’,” he laughs. “I was like ‘thanks everyone, you could have helped me work that out’.” The only negative reaction came from his father, who “didn’t want to know me whatsoever” after hearing the news.  

Adam felt a “huge weight” had been taken off his shoulders after coming out to his inner circle. “I wouldn’t describe it like ecstatic happiness, more just total relief,” he says. “I no longer had to put on a mask. It’s really hard work, trying to be someone that you’re not.” He began the process to change his gender on all his legal documents including his passport, his licence and his birth certificate, legally changed his name and started on hormone therapy.

“I look back at it and I wish I just came out earlier. But it was the fear, the fear of what others would think.” 

Still, there was one very large part of his life that remained shrouded in fear: his workplace. “It’s not a very inclusive environment and the jokes you would hear from other staff made it very clear what their views would be,” he says. “It does scare you a bit, because as soon as you’re not in that ‘normal’ box, you become the target of that bullying.” He tried to “bottle it up”, but struggled. “Going to work trying to be one thing and then being something else on the outside was making my life even more difficult, so I had to suck it up and do it.”

“I look back at it and I wish I just came out earlier. But it was the fear, the fear of what others would think.” 

In a private meeting in March 2022, Adam told his manager that he was coming out as a transgender man, and would like his name and pronouns changed at work. The reaction was as he had feared: “He turned around back to me and said ‘well you can’t just change your name because you want to’.” Adam left the meeting feeling like he had been “pushed back down into a hole” and that he would never be able to be his true self at work. “It made me feel like it just didn’t matter, like I’d have to get over it because nothing’s going to change.” 

The Spinoff approached the Department of Corrections with Adam’s experience for their response, and while they submitted a formal statement, they were unable to comment on specific details. “Due to our legislative obligations as an employer and our statutory obligations under the Privacy Act 2020, we are limited in what information we can provide,” a spokesperson for Corrections said. 

Despite the initial reaction from his manager, Adam continued to request that the principal Corrections officers change his name on the internal daily rosters. Where some supported him, others would refuse and change it back to his deadname, meaning he was never quite sure what name he would be addressed by. Even after he had supplied documentation of his legal name change to the Department of Corrections, Adam says it took “three months of chasing and phone calls” to have his name formally updated within their systems.

In November 2022, the prison director sent out a site-wide email with an update about Adam’s new pronouns and name, and that he would be using male facilities moving forward. It also asked that everyone respect his new identity. “I gave permission for it to go, but I wasn’t horrendously comfortable with it and I didn’t really know any other way to go about it.” 

Following the all staff email, Adam says he became “hammered” with transphobic jokes and nicknames such as “tranny”, “it” and “boy-girl” from his colleagues, who he says made “no effort” with his new identity. “It was not a great experience. No one seemed to really care about my feelings, they just took the piss out of me and didn’t give a crap.” Misgendering became a daily occurrence, and he was scared to use the male bathrooms because of the looks he would receive, and the comments about whether he was “done trying to be a man”. 

Adam also stopped using the male changing rooms at work after a colleague joked that they should be careful not to “convert him back” in getting undressed around him. Senior colleagues attempted to have him moved to a different unit, claiming that the testosterone treatment was making him aggressive. “They came up with all sorts of different stuff, just trying to make it all a big joke,” he says.

“I got to a stage where I knew every day I stepped in there, I was going to get picked on, that I was going to get misgendered, and that I was going to get deadnamed.”

Even when he would try to get on with his job, Adam lacked clarity from his managers around which duties he was able to carry out. For example, rub down procedures, in which prisoners are physically patted down by officers to check for contraband, are only to be carried out by male officers on male prisoners, and female officers on female prisoners.

As these occur daily, Adam had asked “straight away” for direction on whether it would be appropriate to conduct the searches on male prisoners, but was told the question would be passed up the chain.

With a lack of answers from management in relation to conducting male tasks, Adam felt like he was being kept in a “grey area” at work. Even though he presented as male, staff would ask questions during briefings about whether Adam was “allowed” to do rub downs yet, which would inadvertently out him as transgender to new staff members. “It just made everything extremely awkward and sometimes made me feel extremely unsafe,” he says. “I’d be on edge all day, never knowing who knows what or when they are going to find out.”

As a result, he began isolating himself from other staff members, picking up night shifts where he would largely work alone. “You’re just by yourself, you’re not really prisoner facing because they’re all locked up in their cells, so you’re not really having to face anything,” he explains. “I tried to go for situations where I could minimise the amount of people I was around whenever possible.” The night shifts took their toll on his wellbeing, and meant other parts of his life were neglected. “You don’t really have a life outside of work – all you do is sleep.”

By the end of 2022, two years since he had come out as a transgender man in his personal life and nine months since he had informed management of his new identity, Adam still had not received direction from Corrections about his ability to perform male duties. The daily uncertainty took a huge toll on his gender dysphoria and mental health. “There were stages where I pretty much wanted to kill myself, because what was the point?” he says. “It was hard at work to be who I was, but it was even harder trying to be something I wasn’t.”

“I’d be on edge all day, never knowing who knows what or when they are going to find out.”

This ongoing sense of ambiguity put Adam in a particularly difficult situation during a routine safety search in December 2022. A group of eight prisoners were returning from outside the unit, and needed to be searched before entry. Adam and two female officers were to conduct the searches with metal detector wands, but none of the wands were working. Given that he was the only male staff member present, Adam says he had to make a call in an “overwhelming situation” to ensure the safety of everyone in the unit. 

“We had no equipment that was working, and no other male staff around, so I asked the prisoners ‘are you okay with me conducting rub downs?’” With their consent, he began patting them down, but was promptly “yelled at” by a female Senior Corrections Officer who had been dealing with another situation nearby. “I stopped immediately and was told to just use the wand, even though it wasn’t working,” he says. “We pretty much just acted like we were doing it, so they never actually got searched.”

In the aftermath of the incident, Adam wrote an email to his manager explaining what had happened, and acknowledged that he had not been given clear instructions from Corrections on whether he could conduct male tasks. A few weeks later, he received a Letter of Expectations from his employer upholding two complaints made by prisoners about the situation, one of which detailed a “female” staff member conducting rub downs on male prisoners.

The letter deemed Adam’s actions as “unlawful”, and warned of “formal disciplinary action” if they were to be repeated.

While he says the prisoners are within their rights to complain, Adam disputed the “unlawful” ruling to his managers. “I started really looking at it and asking them why I was being punished,” he says. It was verbally explained that the decision was being based on his assigned sex at birth. “So in other words they were basing it on what they thought was in my pants – which they don’t actually know either.” He asked for this to be put in an email, but never received a written response detailing how they reached the decision. 

As he continued challenging management – “pretty much just sending email after email” – Adam was still dealing with “absolutely horrible” workplace conditions day to day. In one instance, he discovered that the name tag on his unit drawer had been changed back to his dead name by a coworker, which triggered feelings of extreme gender dysphoria and anxiety. “I feel acute stress within this victimisation at work but I am unable to take stress leave as I believe that this will be used against me,” he would later write in an impact statement. 

“It is the department’s responsibility to keep me safe at work which should include educating people so that they can understand boundaries of acceptable behaviour.”

When asked for comment on Adam’s story, Corrections were unable to specifically address his experience, citing their statutory obligations under the Privacy Act 2020, but Liz Hawthorn, deputy commissioner for men’s prisons, provided the following statement: “My expectation is that all of our prisons and other sites are safe and inclusive work environments where the identity of staff is recognised and respected. We will not tolerate any behaviour that is not respectful.”

On the gendered requirements of certain duties, Hawthorn added that these are in place to “protect the dignity and wellbeing of people in prison” and that “all staff are entitled to carry out the full range of their duties that aligns with their gender”. In the instance of objections, “staff are advised to first deescalate and educate, and discuss immediately with their line manager, a senior manager, or one of our Inclusion and Diversity Senior Advisors.”

After a year of fighting for answers on his own while still working at Corrections fulltime, Adam made a formal complaint to the Human Rights Commission in March 2023. Since then, his case has been escalated to the Office of Human Rights Proceedings, who will act on his behalf. “Human rights is all about dignity,” says Nicole Browne, senior solicitor for the OHRP. “The Human Rights Act is meant to protect us from being treated differently because of our inherent characteristics. Adam just wanted to do his job, and he was told that because of who he is, he can’t.” 

Hawthorn advised that in January 2024, nearly two years after Adam first sought clarity around his duties, an email was sent to frontline leaders at Corrections, asking them to “ensure all their staff had clarity on the department’s position that staff are entitled to carry out the full range of their duties that aligns with their gender”. The email outlined that “under no circumstance should we restrict an employee’s ability to undertake the full requirements of their role, and that we will support our staff and recognise their right to express their true gender.” 

In February 2024, Adam received an email confirming that he was now able to execute the full range of duties required of a male Corrections officer.

While the case is of huge personal significance for Adam, it is also groundbreaking in a legal sense. Although the Humans Rights Act (HRA) currently prohibits discrimination on the grounds of sex, there’s no explicit provision for gender. When a 2006 members bill to add gender to the HRA was proposed by Georgina Beyer, the Crown Law (who will act on behalf of Corrections) provided then attorney-general Michael Cullen with the legal opinion that sex discrimination should also include discrimination on the basis that someone is transgender. Therefore explicitly adding gender, as the bill sought to, would be redundant. 

As Paul Thistoll explained on The Spinoff last week, government departments and organisations such as the Human Rights Commission have developed policy based on this Crown Law opinion being “true and valid” for nearly two decades. “The problem is that this opinion has, to the best of our legal knowledge, never been tested at the Human Rights Review Tribunal,” he wrote. “Thus, we find ourselves in a situation where policy is being made based on an opinion that is now 17 years old and untested.”

That means Adam’s complaint will be the first time that any court or tribunal will hear a case on the matter of sex discrimination that includes a transgender person. In other words, that 17-year-old opinion will finally be tested. “It is pretty groundbreaking, but it shouldn’t be,” Browne says. “It should be a well accepted point that transgender members of the public should be protected from discrimination.” The case also arrives at a time when transgender rights are being questioned by politicians, with NZ First’s ‘Fair access to Bathrooms Bill’ proposing to fine people who do not use the public bathroom of their designated sex.

Due to significant delays in the Human Rights Review Tribunal, Browne says it will likely take more than a year for Adam’s case to be heard, but the case will be impactful on its own. “This case will make it patently clear that trans employees are entitled to equal treatment under the Human Rights Act 1993,” she says. “The case exposes a current gap in protection, particularly in the public sector, which needs to be addressed with input from the trans community. Ultimately, the Human Rights Act 1993 is about the inherent dignity of all of us, and that must include being safe at work.” 

In the meantime, Adam is holding on to some of the positives that have come out of a tumultuous four years. He plays football weekly, he’s fostering dogs and building Lego, and just this week he got a potential date to undergo top surgery. “I used to have this extremely depressed, confused side of me, where now I don’t really have that at all. I guess now I’m just being my authentic self.” 

He’s also determined to keep fighting for not only his own rights, but the rights of other gender diverse people in his position. “I’m not the first and I won’t be the last. And so why should others have to go through this?” he says. And despite the immense toll the entire chapter has had on Adam’s life so far, he’s still not one to mince his words. 

“I figured I’ve already gone through enough crap, so I might as well carry on and hopefully make it better for everyone.”

*Name has been changed to protect his identity

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