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The Plight of Transgenders In The Global Prison System

By Aishwarya Dhakarey July 29, 2016

 

You know gay, lesbian, bisexual, transgender – people are people.-Judith Light

 

A transsexual person is someone who lives or proposes to live in the gender opposite to the one obtained at birth.  The gender in which the transsexual person lives or proposes to live is known as that person’s acquired gender.[1] 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.[2]

This community is  not only considered an outcast  in the outside world but also within the four walls of the prisons when kept with the general population. Transsexuals usually face a lot of violence and abuse in prisons. 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 with transgender imprisonment have not gained much momentum for the simple reason that the community is marginalized and infrequently outcast. They thrive in humiliating darkness worldwide. Their voices are curbed if raised; they are underrepresented. No matter how well developed  the country is the Transgenders still face challenges in terms of the behavior of the prisonguards, authorities and inmates. This also includes the deteriorating health conditions they show while in prison.

Furthermore, transgenders have acquired their genders, sometimes by undergoing surgery or by having hormone therapy. Think of the situation where 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.

United Kingdom

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 so as to give the community respect at par with the other genders. Besides this, the 20-page guidebook, issued to prison governors states  that "An establishment must permit prisoners who consider themselves transsexual and wish to begin gender reassignment to live permanently in their acquired gender.[3]"

Moreover, 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.[4]Not to forget, the Equality Act, 2010 stands up against all types of gender discrimination in all types of places.Thus, we see that there are sufficient laws in hand for transgenders inmates but nevertheless, they are suppressed in and outside the society even in the UK.

United States

The courts have recognized that the underlying conditions or the circumstances they are placed in 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.[5]

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.[6]

Australia

Australian Human Rights Commission Act 1986 prohibits discrimination on grounds of sex. Similarly, there are gamut of other laws such as Victoria Equal Opportunity Act 1995, Western Australia Equal Opportunity Act 1984, Sex Discrimination Act 1984, et al which secure the rights of different sexes. Despite these, a lingering concern remains, that is with  the management of transgenders 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.

India

Recently, the Indian Supreme Court ruled that transgender people belong to a third gender.[7]Article 14 of the Indian Constitution and some of the  Directive Principles of State Policy enshrine the spirit of  providing to  all the genders an equal opportunity to nourish and flourish. The Bombay High Court had also considered to frame 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 provision put to have a special ward for these transgenders.

Conclusion

After following through the laws in force of the various prison systems around the world, one might wonder about the nature of problems every transgender faces during imprisonment. (Though these are handful but enough to show the plight of the community.) Similar problems are amplified  in all  parts of the world. The ‘similar’ problems include the discrimination they face in prison wards if kept with other genders , the sexual abuse resulting from it, the denial of medical treatment, 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. The inmates have their own peculiar and complex problems, which makes it more, complicated. It is to be realized that these people have just chosen their sexuality and they have every right to live with dignity and self-worth. One solution could be, to open special prisons for transgenders, 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?

 [1] See  Care and Management of Trans sexual prisoners by Ministry of Justice, UK

[2] 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

[3]David Barett, Sex swap prisoners get right to bras and make-up available at

http://www.telegraph.co.uk/news/uknews/law-and-order/8363244/Sex-swap-prisoners-get-right-to-bras-and-make-up.html

[4] See supra note 1

[5] Chelsea Manning, Americas prison fails transgender inmates available at http://www.salon.com/2013/08/23/americas_prisons_fail_transgender_inmates/

[6] Ibid.

[7]YogitaLimaye, India court recognises transgender people as third gender available at

http://www.bbc.com/news/world-asia-india-27031180

TAG: transgenders , prisoners , gender , rights , United Kingdom , United States , Australia , India


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