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.
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.
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.
Article 9 (Additional State Obligations YP+10)
UNDP, ‘Mapping of Good Practices for the Management of Transgender Prisoners (Bangkok, UNDP 2020)
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)
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)
 Recommendation CM/Rec(2010)5.Download