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On March 30, 2009, the Tasmania Prison Service (TPS) issued its first transgender prisoner protocol.
It detailed how transgender prisoners would be managed as the gender with which they identified, and placed in the prison of their gender identification unless there were overriding security issues.
Over the course of the next eight years, transgender woman Marjorie Harwood went to jail seven times – for shoplifting, bail breaches and other minor offences.
But on each occasion, she was placed with the male prison population at Risdon Prison.
Ms Harwood was never explicitly asked what gender she identified with, and prisoner intake forms did not include a sex or gender category.
Her family had no idea that a transgender policy existed – until 14 years later, when they were contacted by an insider, prompting a series of Right to Information requests by the Hobart Community Legal Service.
The documents released under Right to Information revealed the extent of the directions in the policy – and that it hadn't been followed.
Ms Harwood suffered physical and sexualised assault and intimidation throughout her time in the male prison.
She died in 2018, when she stopped treatment for chronic kidney disease while facing another prison sentence.
Transgender vulnerability in prison known for years
The policy was issued in 2009, but the Tasmanian government acknowledged in 2006 the vulnerabilities faced by transgender prisoners.
In an official note to then-attorney general, Steve Kons, the Justice Department said:
"Transgender people in prison raise considerable protection and management issues by virtue of their vulnerability to physical and sexual assault and their stereotyping by staff and inmates."
The department also said:
"For example the prison may not recognise their identified gender and may place them among male inmates, or may segregate them from other inmates, or accommodate them in a hospital environment with all the consequences that such confinement brings."
Ms Harwood entered Risdon Prison in February 2009 – a month before the policy was issued.
Correctional health records noted she "wants to identify as a woman and has taken hormones in the past", was "overtly female" and was fearful of sexual assault.
But even after the policy was issued, the TPS noted her vulnerability in the male environment – after placing her in a maximum security unit.
In November 2009, a case note said she was sitting with her back to her cell door to feel "safer", she alleged a sexual assault occurred, she received a written sexual proposition from another inmate, and had "had enough of being targeted".
Marjorie's gender identity known – but policy not followed
Records show that prison and correctional health staff knew of Ms Harwood's gender identification – but she kept being placed in the male prison.
In August 2013, an intake assessment calls her "Martin (Marjorie)", and in deciding to keep her in maximum security, a custodial management reports says "Harwood is a transvestite who would become an easy target if he was moved anywhere else within the TPS".
There was still no gender or sex option on the intake form – four years after the policy was issued.
In 2015, a TPS intake form notes Ms Harwood was "worried about safety in prison due to sexual orientation", "has concerns will be sexually or physically assaulted", and "Marjorie" is hand written.
A sentence management report again notes her "transgender identification".
Throughout this time, Ms Harwood was experiencing trauma.
She suffered a large wound to her forehead in 2010, a large abscess from "frequent spanking" in 2014, and was assaulted in the prison yard in 2015.
Throughout her extensive prison and correctional health records, there is no reference to consideration of placing Ms Harwood according to her gender identity, which would have been in accordance with the policy.
Department acknowledges policy's existence – and tries to amend it
Following her death, Ms Harwood's family tried to get answers about what she experienced.
As part of this, the Justice Department – in early 2020 – wrote an internal note in relation to her last time in prison. It said:
"Harwood was received on 9 June 2017, prior to implementation of the [policy]."
and that the intake form:
"… does not include a category to record gender status. (This has since been rectified)."
Her family is continuing to call for a coronial inquest, believing that the new information points to a failure to implement the transgender prisoner policy.
Her mother, Rosemary Harwood, said this failure had resulted in trauma.
"I'm angry that the Risdon Prison had a transgender policy, but didn't follow it," she said.
"They acknowledged her as 'she'. Every time I went in there, 'she'. They knew she was trans, but didn't follow the protocols.
"Risdon Prison had a duty of care to look after Marjorie, but they didn't.
"I don't want this to happen to anyone else."
'Serious harm' can result if policies not followed
Not long after her last time in prison, in 2017, the TPS implemented an updated transgender prisoner policy.
It was similar to the policy issued in 2009, except that it also included intersex prisoners.
Another version of the policy is being developed, to be released later this year.
Greg Barns SC, chair of the Tasmanian Prisoners Legal Service, said these policies needed to be "followed strictly", but this appears to not have occurred in Ms Harwood's case.
"Serious harm can result within the prison system if they are not followed," he said.
"Secondly, serious harm can be done to individuals – particularly mental health harm – once they go back into the community.
"That harm sits with them as they go back into the community."
Mr Barns said transgender prisoners should be assessed on a case-by-case basis to determine the safest prison environment for themselves, and others.
Department believes policy had been implemented in 2009
The TPS argues that the transgender policy had been implemented in 2009, and that prisoners were able to "self-identify as transgender" during intake interviews.
The TPS did not respond to a question about whether inmates were explicitly asked their gender or sex, or if they had to raise it themselves.
The TPS also said it had "various versions of the transgender and gender diverse prisoner policy" since 2009, but did not respond to a question about what these other policies were.
They did not appear in Right to Information requests.
The TPS did not respond to a question about why intake forms did not have sex or gender questions for at least seven years after the policy was implemented.
However, it was confident in its next transgender prisoner policy.
"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," the TPS said in a statement.
It would not comment on Ms Harwood's case, despite her family's approval for her case to be commented upon.