Abstract
Keywords
Introduction
The last years, issues concerning transgender persons (such as legal recognition of their gender identity) have been prominent on social and political agendas. Also, the placement of transgender persons within the prison system has been the subject of social and political debate within different European member states. In this article, transgender is defined as an umbrella term to describe people whose gender identity and expression does not conform to the norms and expectations traditionally associated with their sex at birth. 1 In the free society, transgender people are often confronted with the absence of legal gender recognition, family rejection and social exclusion, violations of their rights to education, employment and health, stigma, discrimination and transphobia, disproportionate sexual and physical violence and abuse, criminalization, and increased vulnerability to HIV and other sexually transmitted infections. 2
Prison systems are traditionally binary systems, as prisoners are either placed in a male or a female prison facility. In the literature, transgender prisoners are identified as a vulnerable group, due to the heightened risk of human rights violations such as violence, abuse, sexual exploitation, stigma and discrimination. 3 In 1958, in a now-classic ethnographic study, Sykes has described five fundamental deprivations that characterize daily prison life, known collectively as the ‘pains of imprisonment.’ Sykes detailed five central pains of imprisonment, including the losses of liberty, goods and services, heterosexual relationships, autonomy, and security. 4 The pains of imprisonment has developed into one of the most prominent concepts in the social study of imprisonment. In 2022, Maycock has used the analytical lens of the pains of imprisonment to consider the particular deprivations or frustrations that transgender people experience within prison settings. 5 These pains not only illuminate aspects of life in custody for these people, but more widely illuminate the challenges associated with the growing diversity of gender performance being made to fit within largely binary prison systems. 6
In this article, the central question is whether the human rights framework as developed within the Council of Europe has put forward human rights norms to deal with these specific pains of imprisonment and to provide protection against additional suffering in prison. To ensure safe and humane prison conditions for the vulnerable group of transgender prisoners adequate human rights protection is of the utmost importance.
As will be shown, it is especially the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereafter: CPT) that has created norms for the placement and treatment of transgender prisoners. The work of the CPT is designed to be an integrated part of the Council of Europe system for the protection of human rights of those deprived of their liberty. It places a proactive non-judicial mechanism alongside the existing reactive judicial mechanism of the European Court of Human Rights (herafter: ECtHR), aiming to prevent torture and inhuman or degrading treatment or punishment as prohibited by Article 3 of the European Convention of Human Rights (hereafter: ECHR). The CPT is composed of member from a variety of backgrounds, including lawyers, psychologists and psychiatrists, medical doctors and specialists in prison or police matters. 7 This multidisciplinary approach has allowed the CPT to benefit from new developments in penological, psychiatric and medical insights, for example when dealing with specific categories of prisoners, such as juveniles, women and mentally ill offenders in the past. 8
The CPT exercises its essential preventive function through its periodic follow-up and ad hoc visits. Periodic visits to a country take place usually once every four or five years. Additionally, ad hoc visits can be carried out when necessary. Visits may be carried out to any place where persons are deprived of their liberty by a public authority. After a visit, a report of findings is drawn up, which if necessary, includes recommendations for improvement. The State itself may request publication of the CPT’s report, together with its own response. So far, most States have chosen to publish these documents. In addition, the CPT draws up a General Report on its activities, which is published once a year. Some of the substantive issues the CPT pursues when carrying out visits to places of deprivation of liberty have been brought together in the CPT Standards and tools that are published on the CPT’s website. 9 The CPT reports provide States detailed information on how persons deprived of their liberty should be treated.
The findings of the CPT are not legal judgments. They are based on practical observations and are evolutionary, thus allowing for the gradual improvement of standards in places of imprisonment and growing insight into the best practices for achieving them. 10 The CPT reports also reveal current penal policies within the Council of Europe Member States and its challenges to prevent to prevent torture and inhuman or degrading treatment or punishment in prison from occurring.
Even though the CPT Standards and reports are not binding on States, the CPT has established itself as a significant player in creating standards and safeguards for the humane treatment of prisoners. Nowadays, the CPT can be qualified as an important standard-setting mechanism within the Council of Europe and a protagonist of human rights standards for prisons in Europe. Moreover, the CPT has become a co-creator of new penal law and policy, as CPT norms are increasingly referred to in individual cases, especially when the ECtHR is confronted with aspects of detention on which it has not previously ruled. 11
Combining the criminological theory of the transgender pains of imprisonment with the human rights approach this article makes a novel contribution to the study of transgender people in custody within the Council of Europe context. It will shed light on this often overlooked group of vulnerable persons in European prisons. The findings are not only based on theory, but also illuminate current practices in the Council of Europe Member States, as Maycock’s theory of the transgender pains of imprisonment is based on interviews with 13 transgender people in custody in the Scottish penal context and the country reports by the CPT provide evidence of penal policies and practices on the placement and treatment of transgender prisoners in 10 different Council of Europe Member States.
Methodology
This study consists of desk-research into the human rights norms for the humane treatment of transgender prisoners that have been developed by the different Council of Europe organs the last decade. The relevant human rights standards will be investigated for the Council of Europe context, by considering the case law of the ECtHR, the standards as developed by the CPT and relevant recommendations on this issue, such as the European Prison Rules. 12 The case law of the ECtHR was investigated by searching in the HUDOC database, using the search term ‘transgender prison’, resulting in 16 cases which have been scrutinized to investigate the relevance for the topic. Although the ECtHR has developed standards for those deprived of their liberty, a search in the HUDOC database of the ECtHR reveals that it has not yet dealt with cases concerning the placement and treatment of transgender prisoners, although at the moment one case is pending before the ECtHR. 13 This lack of case law on the topic is in line with Van Baelen and Burbano Herrera who have concluded that while the problems LGBTI prisoners face are manifold, they are rendered somewhat invisible due to the limited, and more often completely absent caselaw at the international level. 14 The HUDOC database of the CPT was used to find reports in which transgender prisoner’s issues were described by using the search term ‘transgender’, providing for 18 results, referring to in total 10 country reports that were all published in the period 2015-2024. 15
The transgender pains of imprisonment in the light of the human rights standards that have been developed within the Council of Europe context
In Maycock’s work, four main particular pains relating to being a transgender person in prison are described. 16 These pains are explored in the sections below, together with the human rights standards concerned that have been developed within the Council of Europe context. 17
The pains of being in the wrong hall and in the wrong clothes
As the first specific transgender pain of imprisonment, Maycock identifies the pains of being in the wrong hall and in the wrong clothes. As a consequence of individualized risk management assessments a number of participants in the study were located in halls consistent with the sex assigned at birth as opposed to their lived gender. This constituted a further subversion of their pursuit of the ‘real deal’ and caused pain and difficulty for all participants who experienced this. 18
Until now, the CPT has been confronted with transgender prisoners ten times, during visits to Austria in 2014, 19 Malta in 2015, 20 Spain 21 and the United Kingdom in 2016, 22 Italy in 2019, 23 Germany in 2020, 24 Greece in 2021 25 and Italy, Greece and Portugal in 2022. 26 In the different visit reports, the CPT has reflected on issues concerning the accommodation and treatment of this group and the challenges they face.
The placement of transgender prisoners is arguably the most challenging issue. Essentially, transgender prisoners challenge the fundamental principles underpinning the rigid, binary CIS normative environment that defines the modern correctional system in most countries. 27 Concerning the placement of transgender prisoners, the CPT has consistently held that as a general rule transgender persons should either be accommodated in the prison section of the respective gender with which they self-identify or, if exceptionally necessary for security or other reasons, in a separate section of the prison. Further, the allocation of a person should always be based on a needs and risk assessment. If accommodated in a separate section, they should be offered activities and association time with the other prisoners of the gender with which they self-identify. 28
The CPT standards that have been created are more concrete than the ones that are offered in the Council of Europe recommendation known as the European Prison Rules. These rules set out standards on the management of prisons and the treatment of people in prison and provide critical guidance to prison staff on how to protect and safeguard the human rights of people in prison. Rule 18.8 of the European Prison Rules prescribes that for every decision to accommodate prisoners in particular prisons or in particular sections of a prison, due account shall be taken of the need to detain male prisoners separately from females (under b). 29 The Commentary to the European Prison Rules, however, points at the situation where prisoners do not fit the binary distinction between male and female: ‘prisoners who self-identify with a gender different from their biological sex and transgender prisoners may not fit the binary male and female accommodation categories and therefore require different arrangements.’ 30 The document, however, does not offer further guidance on how these different arrangements should be given form and shape.
In 2023, a Guidance document on the European Prison Rules was published by Penal Reform International and the Council of Europe. This document aims to offer practical guidance to legislators, policymakers, prison authorities, monitoring bodies, probation services, social welfare and healthcare services, NGOs and other relevant stakeholders, to help and encourage them to take action to respond appropriately to the needs of prisoners in Europe. 31 In this document a more detailed approach for the accommodation of transgender prisoners is offered. As a principle, the document states that ‘[i]n allocating trans prisoners, a respectful and cautious approach should be taken by prison authorities.’ 32 In the document it is noted that placement decisions do not usually take into consideration an individual’s self-identified gender and, in many prisons, trans persons continue to be detained in male or female facilities on the basis of sex assigned at birth, where they are extremely vulnerable to abuse. Similarly, it is noted, that trans prisoners may also be vulnerable to abuse if held in the facility of their self-identified gender. 33
As a guiding principle in relation to accommodation, the document refers to the general rule as developed by the CPT. 34
In the Commentary to the European Prison Rules it is furthermore stated that ‘[t]here has been a growing tendency in some prison systems to separate categories of prisoners or individuals. Instead, prison authorities should strive to create environments in which all prisoners can be safe and free from abuse and should have a set of procedures that enable all prisoners to mix without fear of assault or other violence, namely to ensure that prisoners are able to contact staff at all times, including at night. Where it is necessary to keep some individuals or groups separate because of their particular vulnerability, (for instance, sexual offenders, mentally disturbed prisoners or those from a minority ethnic or religious group) they should have as full a set of daily activities as possible.’
35
Accordingly, prison authorities are asked to accommodate transgender prisoners in a safe environment, while at the same time avoiding segregation to the maximum possible extent. In the Guidance document on the European Prison Rules, it is noted that LGBTQI+ prisoners face risks of being placed in ‘protective’ solitary confinement as a result of their sexual orientation or gender identity or expression. According to the Guidance document, such measures should not be used to stigmatise or punish individuals. Here, it is again stressed that where separation from other prisoners is used, prison regimes must ensure that prisoners have meaningful social contact with others by providing meaningful in-cell and out-of-cell activities. 36
The Guidance document adds that placement decisions should be undertaken with the consent of the individual concerned, as they may prefer to be housed in facilities for their birth-assigned sex for reasons such as work opportunities, safety or family contact. Moreover, the document refers to the report of the UN Special Rapporteur on Torture, where it is noted that transgender prisoners should be given the opportunity to appeal placement decisions. 37
It can be concluded on the basis of the CPT’s reports and the Guidance document on the European Prison Rules, States must respect the gender identity of transgender prisoners in terms of accommodation. This requires that placement decisions are made on a case by case basis in consultation with the prisoner involved, and that such decision should be undertaken with the consent of the individual concerned. In general, it can be argued that a rigid system of placement in a prison on the basis of birth sex is insufficient in the light of the developed human rights standards, because in the case of transgender persons this does not correspond with the gender the person self-identifies with. 38
Maycock has noted that as a result of placement in the hall of birth gender transgender prisoners also poses a number of practical challenges. These practical challenges consisted of significant difficulties in getting gender-appropriate clothing, make-up and hair products that would enable the transgender prisoners to get closer to the vision of the gender they were pursuing. 39
The CPT has found that prison authorities are under a duty to respect the specific gender identity of transgender prisoners, in particular in terms of accommodation and clothing and by addressing them with their chosen name. 40 This calls for an approach that would allow for the affirmation of gender within the institutional context of the prison, consisting of providing also gender-appropriate clothing, hygienic products, make-up and hair products and other practical arrangements to allow prisoners to live in their perceived gender.
During a visit by the CPT to the United Kingdom in 2016, good practices were identified in the treatment of transgender prisoners, which included that the transgender prisoners in the establishments that were visited were supported by staff in various ways, including by ensuring that make-up and wigs were available if requested. 41
The pain of transitioning in custody
As the second specific transgender pain of imprisonment, Maycock describes the pain of transitioning in custody. A significant portion of the interviews in the study focused on transitioning, and the challenges and opportunities this constituted in custody in contrast to transitioning in the community. 42 A number of participants felt that transitioning in custody was particularly difficult, compared with doing this in the community. This was e.g. caused by the feeling that their transgender status and the process of transitioning made them more of a target for negative attention from prison staff. Also, participants stated that, for logistical reasons, they felt that the process of transitioning was slower and more problematic in custody. A wider perception that healthcare provision was particular poor in custody was identified, including challenges of getting health appointments outside of the prison, given the security concerns associated with this and poor communication with health professionals about appointments and waiting lists. 43 Also, both transgender men and transgender women in the study indicated that prior to custody they had been buying non-prescribed hormones online, largely for convenience but also owing to negative experiences of accessing health services, both within custody and community gender clinics, which was in prison no longer possible and was slowing down their transition journey. 44
In the Council of Europe human rights context, the right to health care for prisoners has received prominent attention, e.g. in part III of the European Prison Rules and in the recommendation to the ethical and organizational aspects of health care in prison.
45
It is especially the ECtHR and the CPT that have developed standards, explicitly linking the right to adequate health care to the protection against torture and inhuman or degrading treatment or punishment as offered by Article 3 of the ECHR. The ECtHR has repeatedly stated that: ‘[U]nder Article 3, the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance.’
46
The CPT has addressed the issue of health care in prison in its 1993 general report. 47 In this report, the CPT identified four categories of particularly vulnerable prisoners, i.e. i) mother and child; ii) adolescents; iii) prisoners with personality disorders; and iv) prisoners unsuited for continued detention. The CPT stated that prison health care services should pay special attention to their needs. The specific group of transgender prisoners is not mentioned. Nevertheless, the vulnerability of this group, also in relation to health care issues, has been acknowledged by the CPT in 2017. 48
In relation to the health care services the CPT has held that prison authorities should take the necessary steps to ensure that transgender prisoners have access to assessment and treatment in the same conditions as in the community. Access to counselling and psychological support should also be systematically offered to transgender prisoners. 49 Moreover, the CPT has stated that prisoners should not be excluded from gender reassignment procedures such as hormone treatment, surgery and psychological support and legal procedures for changing the name and sex of a transgender person on identity cards and other official documents that are available to persons in the free society. 50 In this way, the principle of equivalence is stretched beyond health care provision and also requires legal procedures that are relevant for the transitioning process to be available to (transgender) prisoners.
In the study by Maycock, not only challenges with transitioning medically were mentioned, also the social element of transitioning was mentioned by both male and female transgender people. Social transitioning relates to how transgender people learn to behave socially in ways normally associated with people of their lived gender. Social transitioning within the context of being housed in halls consistent with the sex assigned at birth and not their lived gender was found to be particularly challenging. 51
The pains of isolation
As the third specific transgender pain of imprisonment, Maycock describes the pain of isolation. This pain can be found in the sentiment that was expressed by many participants that their transitioning journey was more challenging within custody than in the community. Transgender participants were not often located in prisons or wings with other transgender prisoners, meaning that support from other transgender people in custody was limited (this was true for both the transgender men and the transgender women in this study). Consequently, there were limited opportunities to be part of either prisoner or transgender communities. In addition, those participants who had begun transitioning prior to coming into custody and expressed feelings of membership of the LGBT community indicated that because of their imprisonment they had been separated from these networks. This lack of access to transgender support groups resulted in feelings of isolation. 52
The pain of isolation is not very visible in the human rights norms that have been formulated in the CPT Standards, although the basic principle that placement should take place on the basis of gender identity would imply that transgender prisoners are placed together with people of the same identified gender, including other transgender persons with the same perceived gender, which could allow for opportunities for support and the creation of support networks during the transitioning journey.
The study also shows that because of the imprisonment transgender prisoners are separated from in the free community established networks. This can have a detrimental effect on possibilities for rehabilitation, as such networks are supportive in finding e.g. work and housing after release. It is the ECtHR’s well-established case-law that detention, like any other measure depriving a person of his liberty, entails inherent limitations on a prisoner’s private and family life. It is an essential part of prisoners’ right to respect for family life, nevertheless, that the authorities enable prisoners, or assist them in maintaining contact with their close family. 53 In addition, the ECtHR has considered that States have a duty to make it possible for prisoners to rehabilitate themselves. 54 Accordingly, States must actively facilitate rehabilitation for prisoners and enable prisoners to maintain contact with their family.
In Maycock’s study a number of participants reported to suffer from problematic family relationships. In relation to families and support from families, a number of participants indicated problematic relationships as a consequence of both being in custody and being a transgender person. 55 It can be that because of these severed relations with ‘biological’ family it is the contact with their friends and allies that is preferred. 56 Moreover, for transgender prisoners a broad and flexible notion of ‘family’ and ‘partner’ is needed, to allow non-registered partnerships and filiation (children etc.) to still visit and contact them whilst in prison.
Similar conclusions were drawn by the UN Office on Drugs and Crime, that has stated that since most LGBT prisoners, and especially transgender prisoners, are likely to have lost contact with their families as a result of their sexual orientation or gender identity, adding that prison authorities should try to ensure that support that is lacking from family and relatives is provided by alternative means, for example by establishing contact with relevant civil society organizations and agencies that provide assistance to LGBT people in general and prisoners and former prisoners in particular, as well as establishing cooperation with probation services or other welfare agencies, to facilitate their assistance with finding housing and employment for LGBT persons. 57 The CPT has touched upon this issue in a report after a visit to Greece in 2022, by stating that it is important that the prison administration and social services assisted transgender prisoners in preparing to reintegrate into the community as far as possible, including by linking up with civil society organizations. 58
The pains of transphobia in custody
As the fourth specific transgender pain of imprisonment, Maycock describes the pain of transphobia in custody. All participants in this study outlined experiences of transphobia while they were in custody, implying that custody is more transphobic than the community. Transphobic behavior and responses were noted in both the relationship with other prisoners and the relationship with staff. 59 The transphobia the participants experienced in interactions with other prisoners often took sexualized forms, with comments referring to genitalia. In some instances, transphobic comments took quite aggressive forms, with the threat of violence occurring. All participants indicated that they experienced transphobic comments, but there were no accounts of transphobic physical or sexual violence. Despite regular transphobic comments and the unrealized threats of sexual and physical violence, there was a sense that the punitive nature of prison might constrain expressions of transphobia. This was the result of an assumption that people might be inhibited by the implications of this for their sentence. 60
The transphobia the participants experienced in interactions with staff took similar forms to that from other prisoners, including consistent misnaming, misgendering, using the wrong pronouns and questioning the authenticity of their transition and motivation for transitioning. 61
Transphobia may result in unsafe situations for transgender prisoners.
The ECtHR has acknowledged that prisoners who are vulnerable and are at a heightened risk of inter-prisoner violence should be protected in order to ensure the prisoner’s safety and well-being. 62 Similarly, the Recommendation on measures to combat discrimination on grounds of sexual orientation or gender identity, has issued 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.” 63
The CPT has discussed the issue of safety mostly in connection to the issue of accommodation. The CPT reports provide evidence that when transgender prisoners are placed in a facility on the basis of their birth sex, this may pave the way for unsafe conditions of imprisonment. The examples that can be found in the CPT reports all concerned transgender prisoners who identified as female that were placed in a male facility.
Clear examples of unsafe detention conditions for transgender prisoners can be identified in the several visit reports, most notably in the reports after the visit to Malta in 2015 and the visit to Italy in 2022. 64 In these reports, the CPT has elaborated on the human rights standards for prison authorities to prevent bullying of and violence against of transgender prisoners. These issues will be discussed below.
During the CPT’s visit to Malta in 2015, the CPT was confronted with an alleged incident of prisoner violence against one of the three transgender prisoners. Some of the transgender prisoners that the CPT met during this visit reportedly felt uncomfortable in the all-male setting. They had to have different shower times, felt unsafe and were humiliated by constantly being referred to by their male names, as well as being prohibited from wearing female clothing and generally hindered from self-identifying as women. 65
In response, the CPT has emphasized that the duty of care which is owed by the prison authorities to prisoners in their charge includes the responsibility to protect them from other prisoners who might wish to cause them harm, adding that ‘[t]he prison authorities must act in a proactive manner to prevent violence by inmates against other inmates, especially those who might be considered vulnerable, such as transgender prisoners.’ 66 The CPT recommended that that the Maltese authorities put in place policies to combat discrimination and exclusion faced by transgender persons in closed institutions and that these should be implemented by the prison. In particular, the authorities should put in place a comprehensive anti-bullying strategy to reduce any incidents of inter-prisoner violence and intimidation, especially those directed against transgender prisoners. Such a strategy should include systematic recording and reporting of all such incidents and adequate investigation into all allegations of targeted bullying of, or violence against, transgender prisoners. 67
Furthermore, the CPT recommended that the Maltese authorities review the treatment of transgender prisoners with a view to establishing clear guidelines to guarantee that their rights are adequately respected, including that steps be taken to prevent inter-prisoner violence and that whenever there are suspicions or allegations of inter-prisoner violence or bullying, that injuries are properly recorded and that a thorough investigation is conducted into the alleged violence. 68
During the visit to Italy in 2022, the CPT met with four transgender women who were held in Milan San Vittore Prison and were accommodated in the male section for prisoners on protection, primarily men who were accused of or sentenced for sexual crimes. The transgender women expressed to the CPT that they felt uncomfortable being accommodated in the same section as persons accused of sexual offences and that, consequently, they deliberately downplayed their femininity by not putting on make-up or wearing dresses. 69 At Monza Prison, there were two transgender women, one of whom was accommodated in the protected and vulnerable wing (Section A) while the other was held in a single cell on a protection wing (Section 7). The transgender woman who was placed on a protection wing stated that she had been sexually abused and assaulted by other prisoners in 2021 and a particular prison officer would racially abuse her after drinking while on duty. She did not appear to be getting any specific support following these traumatic events which had occurred the previous year and said she did not feel safe on her wing. 70
The CPT recommended the Italian authorities to draw up a clear policy and guidelines for the management of transgender prisoners which guarantees that their specific needs are catered to. It has added that it would also like to receive information on the specific measures being taken at Milan San Vittore and Monza Prisons to improve the care of transgender women. Furthermore, it added that it would like to receive information on the number of transgender persons (male and female) held in Italian prisons and that it would like to be informed whether there are sections within prisons specifically designated for accommodating trans persons and, if so, the arrangements in these prisons regarding accommodation allocation, staffing, regime and treatment. 71
The transphobic attitude as reported in Maycock in his research did not result in violence, but the CPT reports show that violence against transgender prisoners is a real risk, like the international literature suggests, 72 and that prison authorities should act proactively to prevent such violence from occurring.
As already stated, the transphobic attitude as demonstrated in the study by Maycock consisted of transphobic comments, and also by staff, consistent misnaming, misgendering, using the wrong pronouns and questioning the authenticity of their transition and motivation.
Accounts of staff using demeaning language to transgender prisoners was also identified by the CPT, among others in a report after a visit to Portugal in 2022, where a transgender woman complained that in one prison the guards had used demeaning language when talking to her, for instance, implying that they would find pornographic material in her incoming mail. 73 In the report after this visit, the CPT recommended that the Portuguese authorities pay particular attention to the risks of discrimination and exclusion faced by transgender persons in closed institutions and ensure that policies include strategies to combat ill-treatment by prison staff as well as strategies to reduce any incidences of inter-prisoner violence and intimidation directed against or by transgender prisoners. Such a strategy should include preventive and corrective measures, including the systematic recording and reporting of all such incidents and adequate investigation into all allegations of targeted bullying of, or violence against, transgender prisoners. 74
The issue of pronouns specifically was discussed in the report after the visit to Germany in 2020, when during the visit the CPT spoke to several transgender prisoners who indicated that certain members of staff refused to address them with the name and pronouns they chose or referred to them as “it”, which was perceived by the prisoners concerned as demeaning. 75 The CPT in its report on the visit recommends that the practice of addressing transgender prisoners as “it” be stopped. More generally, the CPT considers that transgender prisoners who wish to change their name and form of address/pronouns should be provided with support to do so in accordance with the law and then they should henceforth be addressed in that manner. 76
The CPT, in this way, aims to prevent transphobic behavior from occurring, by not only requiring states to create a clear policy or guidelines for the management of transgender prisoners, in which the issues of accommodation, staffing, regime, treatment and protection against violence are addressed, but also by underlining the need for respect for the gender identity of the transgender prisoner, resulting in the prohibition of the use of demeaning language and pronouns.
In order to facilitate a sensitive approach towards transgender prisoners, the CPT has stressed the importance of prison staff being offered programs of training and awareness raising on working with transgender persons in prison. 77
Conclusion
In Maycock’s study, the lens of Sykes’ concept of the pains of imprisonment is used to analyze the particular pains of imprisonment on the basis of experiences by both transgender men and transgender women. The study illuminates specific pains of imprisonment on the basis of shared experiences by transgender prisoners, identified as the pains of being in the wrong hall and in the wrong clothes, the pains of transitioning in custody, the pains of isolation and the pains of transphobia in prison. When the reports of the CPT are analyzed it can be concluded that the issues that were addressed on the basis of the experiences with transgender prisoners in 10 Council of Europe Member States to a large extent reflect the transgender pains of imprisonment as identified by Maycock, underlining the distinct and more or less universal nature of the identified pains of imprisonment of this specific group. In its visit reports, the CPT has developed human rights norms and standards to mitigate these specific transgender pains of imprisonment.
The aim of the CPT and its focus, i.e. the prevention of ill-treatment, has resulted in a prime focus on the issue of safety of transgender prisoners, an issue that mainly relates to the pain of transphobia in prison as identified by Maycock. The issue of safety of prisoners as discussed by the CPT is mainly considered in relation to accomodation. Although Maycock’s participants do not reveal incidents of aggression and abuse, the CPT reports do provide evidence of such agression and abuse. The CPT has underlined the duty of the prison authorities to protect transgender prisoner against violence and abuse by other prisoners, by proactively putting in place policies to combat discrimination and exclusion. Maycock has also indicated that a wider institutional effort to challenge instances of transphobia perpetrated by fellow prisoners and prison staff can serve as a way to reduce the pains of imprisonment for transgender prisoners. 78 The positive obligation for prison authorities to prevent violence and abuse is mostly urgent since prisoners may be very reluctant to report incidences such as violence and discrimination by fellow prisoners and staff out of fear of retaliation and exclusion. The basic principle in relation to accommodation that transgender persons should either be accommodated in the prison section corresponding to their gender identity may furthermore mitigate the by Maycock identified pains of being in the wrong hall and in the wrong clothes. As demonstrated earlier, the CPT has also stated that prison authorities are under a duty to respect the specific gender identity of transgender prisoners, in particular in terms of accommodation, but also in terms of providing gender-appropriate clothing and by addressing them with their chosen name and the preferred pronouns.
The element of the importance of adequate health care provision for transgender prisoners arises from both the study of Maycock and the CPT reports. In relation to the right to health care for transgender prisoners, for example, the CPT has noted that gender reassignment procedures such as hormone treatment, surgery and psychological support that are available to persons in the free society should also made available to prisoners. It remains unclear, however, what level of health care assistance should be offered when such treatment is not available or offered in the free society. Addressing the specific health care needs of transgender prisoners such as the availability of hormone treatment and psychological care may mitigate the identified pains of transitioning in custody, but not entirely, as the social aspect of transitioning is very dependent on the location of the transgender person in the prison. Placement on the basis of gender identity seems to play a crucial here in facilitating the social aspect of transitioning, as this allows for behaving socially in ways normally associated with people of their lived gender.
A by Maycock identified transgender pain of imprionsment that is only scarcely visible in the human rights norms as developed by the CPT is the pain of isolation. The pain of isolation refers to the difficulties transgender prisoners face in creating and/or maintaining prisoner or transgender communities. Both the transgender pain of isolation, and the issue of the lack of support from family and relatives for transgender prisoners and its possible negative effects on rehabilitation possibilities after imprisonment, would merit more attention in the further development of human rights guidance in the future.
In some aspects, the current human rights framework allows for protection that goes beyond the transgender pains of imprisonment as described by Maycock. One aspect that is not visible in the experiences by transgender prisoners as described in the study by Maycock, for example, is the issue of intimate body searches. Intimate body searches are a delicate issue for all prisoners, and potentially especially for transgender prisoners. In considering this issue, the CPT has stated that staff should discuss with transgender prisoners during the admissions process what gender of officer they prefer to conduct rub down and strip searches. The prisoner’s search choice must be recorded and then be followed. Also, the prisoner should be advised that this does not allow them to choose the staff members who search them. If the prisoner refuses to select a search preference, they should in principle be searched in line with their gender identity (e.g. a trans woman must be searched by female officers). 79 This policy is in line with international best practice indicating that transgender prisoners should be given a choice regarding the gender of the person conducting the search, to ensure that the search is conducted by a person of the appropriate gender, with minimum interference, while respecting personal dignity and privacy. 80 The human rights protection that is offered here accordingly extends beyond the pains of imprisonment as identified by Maycock, by considering also other aspects of prison policy and practice that are relevant in preventing inhuman and degrading treatment of transgender prisoners.
In conclusion, it can be concluded that over the last decade, it is especially the CPT that has developed detailed human rights norms for some of the most urgent issues concerning the accommodation, security, health care and treatment of transgender prisoners. In doing so, it provides guidance for penal policies and practices within the different Council of Europe Member States.
Even more importantly, it is most likely that the ECtHR will refer to the human rights norms as developed by the CPT when it will deal with cases concerning transgender prisoners in the future, as we have seen that CPT norms are increasingly referred to in individual cases, especially when the ECtHR is confronted with aspects of detention on which it has not previously ruled. It is in this respect that within the Council of Europe, the CPT has made tremendous steps in the emerging and advancement of human rights protection for transgender prisoners which will resonate in the future.
Footnotes
Declaration of conflicting interests
Funding
ORCID iD
