The CPT notes that decisions about the placement of transgender persons in detention (particularly transgender women) can often be ‘a highly-charged politically and socially sensitive topic’.143 The CPT however states that: there is no valid security reason why, in principle, a balanced individual risk assessment carried out when a transgender person is admitted to prison should differ from that which is carried out on the committal of a cisgender person. In both cases, the dual objective should be the same: to make a placement decision that will most effectively protect the person being committed from others who may wish to cause them harm, and to limit the risk that they may be placed in a location in which they may cause harm to others.144 The UN Special Rapporteur on Torture has found that ‘[t]ransgender persons tend to be placed automatically in male or female prisons or wards without regard to their gender identity or expression’.145 This can result in transgender women being placed with men. Alternatively, transgender persons may also be separated from the general population for their safety. While this may provide greater protection for the transgender person, the UN Special Rapporteur on Violence Against Women reports this often ‘results in exclusion from recreation, educational and occupational opportunities and rights of association’.146 The UN Special Rapporteur on Torture has cautioned against this practice recommending that ‘protective measures do not involve the imposition of more restrictive conditions’.147 The CPT emphasises that transgender persons ‘should always be held in locations that best afford their safety and that of others’.148 Where this is not possible, the UN SPT has said ‘[i]f the security of the person cannot be guaranteed in detention, alternatives must be considered’.149 Australian correctional facilities have specifically-designed policies which aim to guide the placement decisions for transgender persons. In reviewing the existing correctional policies relating to the care and management of the adult trans populations in Australian prisons, Winter (2024) acknowledged that correctional institutions were evolving in their understanding of the needs of transgender persons.150 Positively, ‘the existence of specific carceral policies devoted to their unique needs while in prison is testament to the disproportionate disadvantages and vulnerabilities they experience’.151 Winter however cautioned that more research was needed to focus on the implementation of these policies, not just their written intent.152 Walters et al (2024) have also noted that adherence to these policies ‘are often discretional and are inconsistent between jurisdictions’.153 During the inspection, the Commission was advised that the Department ‘does not have current guidelines that specifically outline the management of transgender detainees. The Department takes a person-centric approach to the management of all detainees and incorporates this within all detention operational policies and procedures’.154 The Commission considers the absence of specific policies and guidance material on the management of transgender persons in immigration detention to be inadequate. The Commission notes that the Commonwealth Ombudsman has also suggested that the Department ‘develop comprehensive procedural guidance relating to the accommodation, welfare, security, and management of transgender people in detention’.155 The UN SPT has highlighted that ‘the absence of adequate policies and methods of identification, registration and detention has severe consequences: obtaining precise individual information as to gender identity is vital to determining proper treatment’.156 The CPT has likewise said that ‘[a]ppropriately tailored safeguards against abuse and ill-treatment may be necessary, and careful consideration should be given to the manner in which a broad spectrum of prison policies designed with cisgender prisoners in mind could adversely affect the lives of transgender persons living in prisons’.157 The Principles of the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (Yogyakarta Principles +10) stipulate at Principle 9 (i) that States shall ‘[a]dopt and implement policies on placement and treatment of persons who are deprived of their liberty that reflect the needs and rights of persons of all sexual orientations, gender identities, gender expressions, and sex characteristics and ensure that persons are able to participate in decisions regarding the facilities in which they are placed’.158 Issues and concerns impacting women across the detention network 37