The “double punishment” of transgender prisoners: a human rights-based commentary on placement and conditions of detention

• Published in: International journal of prisoner health 2021-11, Vol.17 (4), p.439-451
• Main Authors: Van Hout, Marie-Claire, Crowley, Des
• Format: Article
• Language: English
• Subjects: Acknowledgment; Aggression; Breaches; Clinical standards; Conventions; Design standards; Detention; Discourses; Equality; Freedom of speech; Gender; Gender identity; Health care; Human rights; Imprisonment; International law; Non-binary gender; Placement; Principles; Prisoner treatment; Prisoners; Prisons; Prohibition; Punishment; Rape; Recognition; Security; Security aspects; Sex discrimination; Sexual behavior; Sexual orientation; Torture; Transgender persons; Trauma; Women
• ISSN: 1744-9200; 1744-9219; 1744-9219
• DOI: 10.1108/IJPH-10-2020-0083

Purpose The incarceration of transgender people is described as a “double punishment” based on lack of gender recognition and ability to gender affirm, and with their experiences and conditions in prison tantamount to torture. The purpose of this study is to illustrate the continued “double punishment” of incarcerated transgender people (in particular trans-women) and identify and describe breaches in human and gender rights and minimum standards of care. Design/methodology/approach There is limited global data on the numbers of incarcerated transgender people, an identified vulnerable prison group. There are inherent difficulties for prison authorities regarding placement, security aspects and management of transgender persons. While the concerns apply to all transgender prisoners, the current literature focusses mainly on transgender women and this commentary reflects this present bias. A socio-legal approach describes and evaluates international human rights’ conventions and human rights’ law, soft law instruments mandating non-discriminatory provisions in the prison setting and relevant European and domestic case law. Findings Transgender prisoners experience an amplification of trauma underpinned by lack of legal gender recognition, inability to gender-affirm, discrimination, transphobia, gender maltreatment and violence by other prisoners and prison staff. Despite obligations and recommendations in international human rights’ instruments and standard operating procedures at the prison level, very few countries are able to fully uphold the human rights of and meet the needs of transgender people in prison. Originality/value This study is important as it highlights the dearth of knowledge exploring human rights discourses and concerns related to the phenomenon of incarcerated transgender persons. It uniquely focusses on European and domestic law and illustrates the inherent tensions between human rights, sexual orientation and gender identity rights and security considerations regarding transgender issues in prisons. Rights assurances centre on the principles of equality, dignity, freedom of expression, dignified detention and the prohibition of inhumane treatment or punishment.