By Aishwarya Dhakarey
Editor’s Note: This paper attempts to examine the plight of transgender prisoners across 4 major international prison systems.
A transsexual person is someone who lives or proposes to live in the gender opposite to the one assigned at birth. The gender in which the transsexual person lives or proposes to live is known as that person’s acquired gender.[i] Moreover, the term transsexual has a precise medical definition and is reserved for people who desire to, or who actually do ‘transition’ to the opposite sex, by undergoing sexual reassignment surgery.[ii]
This community is just not the only outcast outside in the world but also within the prison bars when kept with the general population. Trans genders usually face a lot of violence and abuse within the four walls of the prison. The violence is carried out more often by the guards than the inmates. This type of abuse usually takes a form of sexual abuse.
The issues and problems related to transgender incarceration have not gained much momentum for the simple reason that the community is marginalized and occasionally outcast. They thrive in ignominious darkness worldwide. Their voices are curbed if raised; they are underrepresented. No matter how well developed is the country, the Trans genders still face challenges in terms of the behavior of the guards, authorities, and inmates. This also includes the deteriorating health conditions they show while in prison. Furthermore, trans genders have acquired genders, sometimes by undergoing surgery or by having hormone therapy.
Think of the situation when a transgender with feminine characteristics is forcibly thrown to a male ward, it is like keeping both male and female prisoners together. This piece is an attempt to analyze their sexual identities, the problems they encounter in the global prison system and the relevant legal frameworks.
A detailed new policy document drawn up by Kenneth Clarke’s Ministry of Justice in 2011 requires jail warders to address inmates by courtesy titles such as Mister, must call transsexual prisoners “Miss” or “Ms” under the new mandatory guidelines. The 20-page guidebook, issued to prison governors remarked that “An establishment must permit prisoners who consider themselves transsexual and wish to begin gender reassignment to live permanently in their acquired gender.[iii]“
From the point of view of the security, it is provided that if it emerges that a prisoner has been placed in the estate opposite to the legally recognized gender, a transfer must be arranged as soon as possible unless the prisoner requests location in this estate.[iv]Not to forget, the Equality Act, 2010 stands for all types of gender discrimination in all types of places. Thus, we see that there are sufficient laws in hand for trans genders inmates but nevertheless, they are suppressed in and outside the society.
The courts have recognized that the underlying condition of gender identity disorder is real and that the provision of medical care includes providing hormones and surgery in appropriate cases. In state prisons, transgender prisoners have frequently been denied any transition-related healthcare.[v]
Transgender people who have not had genital surgery are generally classified according to their birth sex for purposes of prison housing, regardless of how long they may have lived as a member of the other gender, and regardless of how much other medical treatment they may have undergone.[vi]
Australian Human Rights Commission Act 1986 prohibits discrimination on grounds of sex. Similarly, there is a gamut of other laws such as Victoria Equal Opportunity Act 1995, Western Australia Equal Opportunity Act 1984, Sex Discrimination Act 1984, et al which secures the rights of different sexes. Despite these, a lingering concern remains which is the management of trans genders in prisons. They are denied required treatment at times, sometimes are subjected to prison violence.
What they can wear, the personal items they are permitted to purchase, the way in which they are searched, and the name by which they are referred to by staff and in official prison records do not show a bright picture though. At times, self-harms are also afflicted by them.
Recently, the Indian Supreme Court ruled that transgender people are a third gender.[vii] Article 14 of the Indian Constitution, as well as many other Directive Principles of State Policy, enshrine the spirit to provide all the genders an equal opportunity to nourish and flourish. The Bombay High Court had also considered framing special guidelines for transgender prisoners as their issues need to be addressed effectively. What they complain is about the indifferent behavior of prison staffs. There has been a point made to have a special ward for these transgenders.
After going through the cases of the various prison systems around the world, one might wonder about the nature of problems every transgender face during imprisonment. (Though these are a handful but enough to show the plight of the community.) The similar problems are amplified greatly in all these parts of the world. The ‘similar’ problems include the discrimination they face in prison wards if kept with other genders in the wards, the sexual abuse resulting from it, the denied medical treatment to them, the refusal to provide them with proper clothing, the bad attitude of the prison authorities towards them, legal underrepresentation, etc.
These are the ‘general’ concerns and not the special ones. The inmates have their own peculiar and complex problems. It is to be realized that these people have just chosen their sexuality and they have every right to be with dignity and poise. The idea to open special prisons for these should be welcomed in India. The criminal justice system needs an overhaul in this direction as well. It is quintessential for their personal development. The need to answer a psychological question is felt here, if we have prisoner rights for both men and women then, why not for the ‘hijras’ as we refer to them?
Formatted on February 21st, 2019.
[i] See infra note 2
[ii] Rebecca Mann, ‘The Treatment of Transgender Prisoners, Not Just an American Problem-A Comparative Analysis of American, Australian, and Canadian Prison Policies Concerning the Treatment of Transgender Prisoners and a ‘Universal’ Recommendation to Improve Treatment’ (2006) 15 Law and Sexuality: A Review of Lesbian, Gay, Bisexual, and Transgender Legal Issues available at http://www.wpath.org/Document2/socv6.pdf last seen on 15/9/2014
[iii] David Barrett, Sex swap prisoners get right to bras and make-up, The Telegraph (5/09/2011) available at
http://www.telegraph.co.uk/news/uknews/law-and-order/8363244/Sex-swap-prisoners-get-right-to-bras-and-make-up.html last seen on 16/09/2014
[iv] See supra note 2
[v] America’s prisons fail transgender inmates, Salon, http://www.salon.com/2013/08/23/americas_prisons_fail_transgender_inmates/, last seen on 17/9/2014
[vii] Yogita Limaye, India court recognises transgender people as third gender, BBC News India, India court recognises transgender people
as third gender (15/4/2014) available at http://www.bbc.com/news/world-asia-india-27031180 last seen on 10/9/2014