by Dr. Róisín Mulgrew
Lecturer in Criminology and Criminal Justice, University of Galway and Irish Centre for Human Rights
Transgender prisoners often face distinct challenges and discrimination in custodial contexts. This is recognised in the Council of Europe’s Committee of Ministers 2010 Recommendation on measures to combat discrimination on grounds of sexual orientation or gender identity.[1]
Rule 4 of the Recommendation, included under the heading ‘right to life, security and protection from violence’ in relation to hate crimes and hate-motivated incidents, states that:
“Member states should take appropriate measures to ensure the safety and dignity of all persons in prison or in other ways deprived of their liberty, including lesbian, gay, bisexual and transgender persons, and in particular take protective measures against physical assault, rape and other forms of sexual abuse, whether committed by other inmates or staff; measures should be taken so as to adequately protect and respect the gender identity of transgender persons.”
Although there are no specific or comprehensive guidelines governing the treatment and management of this category of prisoner, the Yogyakarta Principles outline important State obligations relevant to ensuring humane treatment. These include ensuring protection from abuse, violence and discrimination, access to appropriate medical care, the facilitation of oversight and the provision of training.
The Yogyakarta Principles
First developed in 2006, the Yogyakarta Principles address a broad range of international human rights standards and their application to sexual orientation and gender identity issues. Article 9 sets out key measures that should be taken to uphold the right to treatment with humanity in detention. A panel of experts further expanded the obligations contained in Article 9 in 2017 (YP+10).
Article 9 (2006)
The Right to Treatment with Humanity while in Detention
Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Sexual orientation and gender identity are integral to each person’s dignity.
States shall:
a) Ensure that placement in detention avoids further marginalising persons on the basis of sexual orientation or gender identity or subjecting them to risk of violence, ill-treatment or physical, mental or sexual abuse;
b) Provide adequate access to medical care and counselling appropriate to the needs of those in custody, recognising any particular needs of persons on the basis of their sexual orientation or gender identity, including with regard to reproductive health, access to HIV/AIDS information and therapy and access to hormonal or other therapy as well as to gender-reassignment treatments where desired;
c) Ensure, to the extent possible, that all prisoners participate in decisions regarding the place of detention appropriate to their sexual orientation and gender identity;
d) Put protective measures in place for all prisoners vulnerable to violence or abuse on the basis of their sexual orientation, gender identity or gender expression and ensure, so far as is reasonably practicable, that such protective measures involve no greater restriction of their rights than is experienced by the general prison population;
e) Ensure that conjugal visits, where permitted, are granted on an equal basis to all prisoners and detainees, regardless of the gender of their partner;
f) Provide for the independent monitoring of detention facilities by the State as well as by non-governmental organisations including organisations working in the spheres of sexual orientation and gender identity;
g) Undertake programmes of training and awareness-raising for prison personnel and all other officials in the public and private sector who are engaged in detention facilities, regarding international human rights standards and principles of equality and non-discrimination, including in relation to sexual orientation and gender identity.
Article 9 (Additional State Obligations YP+10)
States shall:
h) Adopt and implement policies to combat violence, discrimination and other harm on grounds of sexual orientation, gender identity, gender expression or sex characteristics faced by persons who are deprived of their liberty, including with respect to such issues as placement, body or other searches, items to express gender, access to and continuation of gender affirming treatment and medical care, and “protective” solitary confinement;
i) Adopt 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;
j) Provide for effective oversight of detention facilities, both with regard to public and private custodial care, with a view to ensuring the safety and security of all persons, and addressing the specific vulnerabilities associated with sexual orientation, gender identity, gender expression and sex characteristics.
Sources:
UN
UNDP, ‘Mapping of Good Practices for the Management of Transgender Prisoners (Bangkok, UNDP 2020)
COE
Recommendation CM/Rec(2010)5 of the Committee of Ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity (2010)
APT
APT, Towards the Effective Protection of LGBTI Persons Deprived of Liberty : A Monitoring Guide (2018)
Academic
Brown David, ‘Making room for sexual orientation and gender identity in international human rights law: an introduction to the Yogyakarta principles’, (2010) 31 Michigan Journal of International Law Sevelius, J. and Jenness, V, ‘Challenges and opportunities for gender-affirming healthcare for
transgender women in prison’, International journal of prisoner health, 13(1), (2017) 32–406 Van Hout MC, Crowley D, ‘The “double punishment” of transgender prisoners: a human rights-based commentary on placement and conditions of detention’, International Journal of Prisoner Health (2021)
[1] Recommendation CM/Rec(2010)5.