The 2017 gang-rape of Marjorie Harwood in the men's prison occurred when a transgender prisoner policy that could have kept her safe existed.
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Her legal advocates argue that Tasmania Prison Service staff and management failed to follow this policy, despite recognition by government ministers that the transgender prisoner experience needed to improve.
Marjorie Harwood, who was born a male but identified as female, was housed in the male prison when she was gang-raped in 2017 and received injuries resulting in a chronic kidney condition.
In 2018 Marjorie refused medical treatment for that condition knowing that this would result in her death.
Whistleblower reveals an unknown 2009 policy existed
An insider provided information to Ms Harwood's legal team, including community lawyer Ben Bartl, that a policy existed, leading to a Right to Information request for the 2009 policy.
They argue that the Tasmanian Prison did not follow its 2009 transgender prisoner care policy, and failed to place Marjorie in appropriate housing while she was in prison.
This policy said transgender prisoners should be housed in the male or female's prison according to the gender-identity of the prisoner.
It stipulated that transgender prisoners must be assessed by prison and prison health staff to ensure the prisoner would be housed appropriately, either in the men's or women's prisons.
"For example, transgender prisoners who identify as female will normally be accommodated within the Mary Hutchinsons Women's Prison unless their are overriding security, safety or other reasons to accommodate them within a men's facility," the policy said.
The safety risk to Marjorie Harwood was known
When the policy was in force Marjorie entered jail on seven different occasions, for minor offences such as shoplifting and bail breaches, and filled out intake forms each time.
None of the forms included an option to note Marjorie as transgender.
Mr Bartl said Marjorie was never formerly assessed as transgender nor was she placed in an appropriate prison, but the risk to her safety was known by prison staff.
Prison documents record her transgender status and state that Marjorie would be an "easy target" if put in the general male prison population.
They also reveal that she told prison staff that she had been assaulted, was concerned about future physical and sexual assaults, and worried that she would "be stood over for sexual favours".
Prison 'does not comment' on individual matters
A Justice Department spokesperson said a number of different versions of the March 2009 transgender prisoner policy had been developed.
"That policy was implemented and in force from the date it was first issued until it was replaced with an updated policy in 2017," they said.
This current policy states that transgender prisoners can be housed in the prison of their gender identification, for example, a female identifying prisoner can live in Mary Hutchinson's Women's Prison.
But a new policy is being developed for 2024.
"The Department of Justice has been working with community and key stakeholders and consulting with those with lived experience on the development of a revised transgender and gender diverse prisoner policy.
"Once the review of this policy has been finalised and other key stakeholders consulted, the new policy will be issued."