Karla Bello, a care assistant in Florida, found herself in a male prison after missing a court hearing about traffic violations and unpaid bail. Living as a transgender woman for years, her experience within the prison system brought to light the stark reality of trans rights in such environments. In addition to this blatant disregard for how she chose to express her sexual identity, she was subjected to misgendering by guards who confiscated personal items like her bra and ‘gaff’, and denied her access to cross-sex hormones, a vital aspect of her medical care. This illuminates the unique challenges that transgender individuals confront within the criminal justice system, particularly during incarceration. This article emphasizes the imperative of ensuring the rights of transgender people in prisons as a fundamental commitment to justice, human dignity, and equality. Subsequently, the article will delve into the specific challenges faced by transgender individuals in correctional facilities, shedding light on the systemic neglect of their rights and exploring advocacy efforts aimed at their protection within these environments.
Current Status of Trans Rights in Prisons
Ensuring trans rights in prisons involves treating transgender individuals with dignity, providing gender-appropriate facilities, and ensuring access to necessary medical care. This is essential to establish a justice system that upholds human dignity, ensures equality, prevents discrimination and violence, safeguards mental and physical health, and promotes rehabilitation and social inclusivity for all, irrespective of gender identity. Unfortunately, this remains an elusive goal, as the current status of transgender people within the justice system falls short of the idealistic view that governments like to espouse in their rhetoric. In India, despite certain landmark judgements, such as the one recognizing transgender people as third gender (NALSA vs. Union of India), the levels of historic discrimination perpetuated against the members of the LGBTQ+ community, especially the transgender community remain unmitigated. Prisons, designed for punishment, often operate as spaces where human rights are suspended. The inherent power imbalance and the curtailment of liberty create a significant vulnerability in realizing the rights of prisoners. This vulnerability becomes even more pronounced for sexual minorities within the LGBTQ+ community, primarily due to the startling oversight in the central legislation governing prison administration. Astonishingly, the Prison Act of 1894 fails to recognize sexual minorities based on sexual orientation and gender identity as a distinct class of prisoners. This legislative gap accentuates the challenges faced by LGBTQ+ individuals in prisons, highlighting the urgent need for legal reforms that acknowledge and protect the rights of this marginalized group within the incarcerated population.
Transgender individuals in prisons grapple with several challenges, one of which is intrusive bodily searches. The Prisons Act mandates these searches, with guidelines outlined in the 2016 Model Prison Manual (MPM). However, the MPM lacks specific provisions for sexual minorities, leading to potential exploitation during searches. According to the MPM, male prisoners are to be searched by male guards, and female prisoners by female guards, leaving no clear protocol for transgender individuals. This loophole allows for searches based on perceived sexual characteristics, as witnessed in Karnataka where prisoners were examined and segregated based on genitalia. Such practices violate the right to self-determination, a crucial element within the fundamental right to privacy. In addition, trans individuals in prison face significant distress due to the absence of separate cells dedicated to their needs. Section 27 of both the Prisoners Act and the Model Prison Manual (MPM) mandates the separation of prisoners based on gender, age, and civil status, aiming to prevent potential conflicts among inmates. However, the MPM fails to acknowledge transgender individuals as a distinct category deserving special treatment. This oversight is concerning, as transgender and transsexual people are at heightened risk of physical and sexual abuse by both fellow inmates and prison guards. The lack of specific provisions leaves transgender individuals vulnerable and exposed to targeted abuse that often goes unreported. An alarming example is the case of Kiran, one of five trans females housed among 2,000 male prisoners in Nagpur jail, who suffered sexual assault by cis-male inmates. Such instances, documented in Kiran's diary, Kiraa-e-dastaan, underscore the urgent need for recognizing and addressing the distinct risks faced by transgender individuals in prison, ensuring their cries for help are neither unheard nor ignored. Even if trans people are put into a separate ward, it is a ward assigned to those suffering from infectious diseases such as tuberculosis, HIV, leprosy and scabies.
The lack of recognition of the special health needs of transgender individuals within the framework of the Prisons Act poses significant risks, especially in the context of their potential exposure to infections. The Act fails to account for the distinctive health requirements of trans people, leading to inadequate medical attention that neglects their rights and dignity. The right to self-identity for SOGI-prisoners necessitates medical examinations conducted by specialists who comprehend their unique needs. Without this provision, trans individuals may receive inappropriate prescriptions, face obstacles in accessing necessary surgeries, and witness a further deprivation of their rights. Instances in Nagpur prison illustrate this neglect, where a trans woman was subjected to a humiliating inspection of her body, those in need of hormone replacement therapy were denied, and an individual with a breast implant infection was administered painkillers without proper diagnosis. Further infringements on their rights occur as prisons restrict their movement under the guise of "special treatment," confining them and compromising their privacy during daily activities like bathing and ablution.
The absence of comprehensive records on transgender prisoners exacerbates the challenges they face within the criminal justice system. Standard records typically encompass various details, including identity, medical and economic background, legal status, and family records, with a dedicated column for gender information. However, the existing legal framework lacks a specific clause ensuring accurate recording of gender for transgender individuals, leaving them susceptible to misgendering. This, coupled with the issues mentioned earlier, contributes to heightened levels of stress, anxiety, and depression among transgender prisoners, as their fundamental rights are systematically disregarded.
The persistence of injustices faced by trans prisoners, despite the existence of a judiciary, is underscored by systemic disparities in access to legal representation. A significant number of trans prisoners hail from lower-caste or Dalit families, lacking the financial means to secure proficient legal assistance. Although Article 39 mandates free legal aid and Articles 14 and 21 ensure justice for all, only Delhi recognizes the specific legal needs of the transgender community. Even when trans individuals manage to secure legal support, their pleas are frequently overlooked, and their cases are shelved for extended periods, depriving them of the right to be defended by a lawyer and delaying the pursuit of justice. Despite opposition from trans rights activists, the Transgender Persons (Protection of Rights) Act was enacted by the Indian Parliament in November 2019. This legislation, in violation of court rulings and constitutional rights, mandates legal gender recognition through a "transgender certificate" application process from the district magistrate. Transgender individuals entering prison without this certificate are left at the discretion of prison authorities and doctors, who may determine their recognition based on physical attributes, raising concerns about privacy and personal autonomy.
Attempts at Securing Rights
The Yogyakarta Principles and the United Nations Standard Minimum Rules on Treatment of Prisoners, also known as the Mandela Rules (2015), emphasize the need for enhanced protection for sexual minorities deprived of individual liberty, specifically addressing discrimination in placement, body searches, and gender expression. These principles acknowledge the prohibition of discrimination based on 'any status,' guiding the selection of prison placement based on identity. The establishment of exclusive safe spaces for transgender individuals, as seen in initiatives by the Kerala government, aligns with these principles. Some positive strides have been made in India, with 18 states, including Delhi, UP, Maharashtra, Kerala, Karnataka, Goa, and AP, recording transgender data separately from male and female data. Responding to the challenges exacerbated by COVID-19, the National Human Rights Commission has issued guidelines for LGBTQ+ communities in detention, urging anti-discriminatory policies, improved medical treatment, and zero tolerance for abuse. States like Karnataka have already implemented circulars aligning with these guidelines. Additionally, efforts by institutions like the Academy of Prisons and Correctional Administration in Vellore, collaborating with the National Institute of Social Defence (NISD), aim to introduce structural changes in prisons. Drawing parallels, the United States Constitution and the Prison Rape Elimination Act (PREA) provide a legal foundation for claims related to the health and safety of transgender individuals in U.S. prisons, emphasizing the duty of officials to protect inmates upon disclosure of their identity. These initiatives collectively underscore the global recognition and ongoing efforts to address the unique challenges faced by transgender individuals within the prison system but remain only a starting point in a long battle towards ensuring fair treatment.
Potential Reforms
Recognition of the right to self-determination within the Prisons Act and the Model Prison Manual (MPM) is imperative to mitigate the exploitation faced by trans individuals due to their identity. Such acknowledgment would empower trans prisoners to choose the gender of staff administering bodily searches, fostering a more respectful environment. Addressing prison reforms for trans persons necessitates the creation of a separate category, as outlined in the NALSA judgment, enabling authorities to maintain specific records. Additionally, specialized medical experts focusing on sexual orientation and gender identity (SOGI) are crucial to meet the unique healthcare needs of trans prisoners, including access to information on HIV/AIDS, hormonal therapy, and gender reassignment treatment.
The Prisons Act's Section 59 (25) recognizes the need for external monitoring, and the constitution of a Board of Visitors (BOD) comprising official and non-official members. For trans individuals, non-official members could include SOGI activists and NGO representatives, providing insights into their specific challenges. Official members could be appointed from the National Council of Transgender Persons, established by the Transgender Persons (Protection of Rights) Act, 2019. A dedicated oversight facility within correctional facilities is essential to ensure the safety and security of sexual minorities, addressing vulnerabilities tied to their gender identity and sexual orientation. Finally, advocating a gender-fluid approach, the Commonwealth Human Rights Initiative (CHRI) plays a crucial role in advancing awareness and documentation for the reform of sexual minorities, particularly trans prisoners. The CHRI's recommendations should be considered by the Union government to formulate a 'model policy' on the special needs of trans prisoners, in consultation with the trans community, aligning with the NALSA judgment's mandate. In conclusion, the plight of transgender individuals in prisons highlights a pressing need for comprehensive reforms to safeguard their rights and dignity. The systemic challenges outlined, from misgendering and intrusive searches to inadequate healthcare, underscore the urgency of recognizing the unique vulnerabilities faced by trans prisoners. Advocacy for self-determination, separate categories, and specialized medical care is crucial for fostering an inclusive and just prison system. As global efforts and initiatives strive for change, addressing the rights of transgender individuals within correctional facilities remains an imperative for true justice and equality.
References
Trans Persons in Indian Prisons: A Case of Double Marginality (thewire.in)
Transgender Prisoners' Legal Rights | LGBTQ+ Legal Resource Center | Justia
Misgendering, Sexual Violence, Harassment: What it Is to Be a Transgender Person in an Indian Prison (thewire.in)
Why are trans rights in prison so rarely defended? | Zoe Williams | The Guardian
Putting trans women in female prisons sets up a clash of rights (economist.com)
Transgender Discrimination in Prison and Your Rights - Ruane Attorneys At Law, LLC
Trans women are still incarcerated with men and it's putting their lives at risk | CNN
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