This article is written by Nishka Kamath, a student at Nalanda Law College, University of Mumbai. This article aims to elucidate the difficulties faced by Transgenders in prisons due to Transphobia and lack of policies and awareness, especially in India, amongst other nations. 

Introduction

“It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.” – Nelson Mandela

Indeed, the true identity of a nation lies in the manner the citizens belonging to the lowest groups and lower-castes are treated, especially in jails. The violence, the struggle, the assault faced by the trans persons in prisons is abhorrent. Even when progress is made in the field of the rights of transgenders, very little attention is paid to trans persons in detention. 

For us to understand what transphobia is and the struggles that trans people go through in prisons, we need to understand the nitty-gritty or fundamentals of trans people. So, let us dive into the details of Transgender first and then that of Transphobia in prisons. 

Understanding the transgender community

Everyone- whether transgender or not has a gender identity. Usually, people never ponder upon their gender identity as it reflects or matches the sex they were assigned at birth. As per the National Centre for Transgender Equality, transgender people are those people whose gender identity is dissimilar from the one they were assigned at birth. So, a trans woman lives life like a woman today but was assigned to be male at the time of her birth. Similarly, a trans man lives a man today but was recognized to be female at the time of her birth. Sometimes, people recognize themselves as neither a  male nor a female, sometimes as a mixture of both- male, as well as female. There are several terms used for people who are not completely male or female to express their gender identity, like non-binary or genderqueer. 

Note of information: Being a trans person means different things to different persons. Just like many other characteristics of people like that of race, religion or caste, there is no specific way to become transgender, nor is there a specified way for trans people to look a particular way or feel the way they feel about themselves. The best way to learn about trans people is to have a conversation with them and listen to their stories. 

Prejudice against transgenders and transphobia

Transphobia refers to the fear, hatred, suspicion, or mistrust of transgender people, people who consider themselves transgender, or those whose gender expressions do not conform to the conventional gender roles. Transphobia can stop transgenders and gender-nonconforming people from living lives to their fullest. 

Transphobia can take many different forms, including:

• Unfriendly attitude and opinions.
• Disgust and bias against trans people.
• Unreasonable concerns and misinterpretations.
• Derogatory languages and the use of offensive names for addressing them.
• Harassment, bullying, abuse, and violence.

Note of information: “Outing” is a term used for an act committed when a person reveals another person’s transgender identity or sexual orientation without obtaining their consent or prior permission. Outing is either done deliberately or unintentionally. It may expose them to the risk of feeling awkward, sad, and vulnerable. It can also lead to discrimination and violence, so, one must be very careful before revealing another’s identity.

Transphobia can cause both forms of discrimination- indirect and direct. For instance, trans people or those who are considered to be trans may be rejected from jobs, housing, or health care, simply because they are transgenders. Some individuals may have transphobia due to the teachings they have received from other individuals, including their parents and families, who encourage negative impressions about transgender people and have strict notions about conventional gender roles. Other individuals have transphobia due to wrong information or no information about transgender identities. They may be unaware of trans people or the hardships faced by trans people or they may not know any trans person personally.

Transphobia refers to a form of oppression and bias against transgender people. It can have a severe effect on their physical and mental health. It can be very harmful and can cause depression, dismay, a feeling of hopelessness, etc.

Note of information: 17th May is celebrated as International Day against Homophobia, Transphobia, and Biphobia (IDAHOTB). The Day was recognized in 2004 to bring into the limelight the violence and unjust treatment faced by the lesbian, gay, bisexual, transgender, intersex (LGBTQIA+) community, along with all other people who have a diverse sexual orientation, gender identity or expression and sexual feature. May 17th is now commemorated in more than 130 countries, inclusive of those countries where same-sex activity is unlawful. 

Transphobia in prisons

The Supreme Court, in the National Legal Services vs. Union of India (2014), commonly known as the NALSA judgment (discussed below), paved a path for the recognition of a third gender, along with male and female. However, the Indian prisons still follow the regressive process where trans people are misgendered and ill-treated. Even now, most trans people are allocated prisons based on the gender they were assigned at birth, instead of the gender they identify presently. It is crucial to understand several aspects of transphobia in daily life. One of them is the way transgenders are treated in prisons. 

No primary education about sex and gender identity has forced society into disbarring people who do not operate in the sphere of the gender binary. As disclosed by the non-government organization, Commonwealth Human Rights Initiative (CHRI), in its report published in 2020, titled ‘Lost Identity: Transgender persons in Indian prisons’, most of the Indian states do not even keep a different register for recording the information on transgender prisoners.  Without proper data about trans people and their particular wants, the prisons cannot take any steps to mitigate this situation even if they desire to.  

This report gathered information via the Right to Information Act from the State Government and prisons. According to this report, schemes and knowledge about the basic needs of trans inmates were absent, thus causing their rights to be repudiated. Additionally, this report found out that more than 214 transgenders are behind the bars across the Nation. But note has to be taken that this data was not preserved by following a particular uniform procedure across states and thus is incomplete, so there are chances of this number being higher. 

It was found that Andra Pradesh, Goa, Himachal Pradesh, Karnataka, Meghalaya, Sikkim, Uttarakhand, Dadra, and Nagar Haveli and Puducherry have been maintaining a separate register apart from male and female amongst the states and union territories who answered the queries of the organization. Moreover, there was no uniformity in maintaining records in various jails in states like Gujarat, Jharkhand, Maharashtra, Rajasthan, Kerala, Delhi, Tripura, West Bengal, and Uttar Pradesh.

Various sorts of responses were given by the State and prison authorities when enquired about their treatments in the case of trans prisoners. As per the report, the Government was unsuccessful in meeting the standards for determining the needs of trans persons in prisons. Not only the prisons, but the courts, as well, were unsuccessful in identifying the “third gender”. The gender of trans persons persists to be recognized based on their genitalia, and the common specified category of male and female. 

In addition, the report stated that no plans or initiatives for transgender inmates were organized, nor there have been any awareness campaigns for the inmates as well as the staff authorities in prisons. There is a dire need for the prison department to be enlightened about the sensitization of prisoners, especially on matters related to gender recognition and sexual orientation. According to the report, the State government and the prison training institutes must take proper steps to educate the prison officers, warders, visitors, etc. to ensure that trans people feel included socially. Also, such programs must not be confined to the prison staff but must also involve prisoners. The government and prison staff must make sure that no trans person is ill-treated, mentally or physically assaulted, or undergoes any sort of violence. 

The prisoners completely rely upon the prison authorities for their survival, even if they are at serious risk of being abused by these staff members in the first place. While imprisonment exposes each and every inmate to a new layer of vulnerability considering their disunion from their family, friends, social circle, and comfort zones, groups like transgenders find themselves in more danger than others. 

International principles

Legislative drafters and policymakers in India have not paid much attention to international standards like those of several United Nations agencies, for instance, the Nelson Mandela Rules (2015), or the Yogyakarta Principles and the Yogyakarta Principles plus 10 (YP+10). These principles focus mainly on concerns of human rights violations faced by an individual because of their sexual orientation or gender recognition. 

The United Nations Standard Minimum Rules for the Treatment of Prisoners, known as “the Nelson Mandela Rules” were adopted by the UN General Assembly in December 2015. It was named so in honour of the late President of South Africa- Nelson Rolihlahla Mandela, who was behind the bars for 27 years for advocating for human rights all around the globe, equal treatment, democracy, and promotion of a culture of tranquillity. 

The Yogyakarta Principles were set up in 2006 when a group of esteemed international human rights experts had a meeting for outlining a set of international principles relating to sexual orientation and gender identity. These principles have a binding international standard and every state has to follow them. They assure a different future when every individual is born free and equal in dignity and rights can fulfil that precious birthright. Also, the ‘YP plus 10 document’ emerged from the intersection of the developments in international human rights law with the emerging understanding of violations suffered by persons on grounds of sexual orientation and gender identity and the recognition of the distinct and intersectional grounds of gender expression and sex characteristics.

There is no sufficient guidance for the protection of transgenders in detention, except for Article 7 of the Mandela Rules, which clearly states that certain data has to be collected while the admission of a prisoner including precise information that can determine their unique identity and respecting their self-perceived identity. Whereas Principle 9 of the Yogyakarta Principles ensures that imprisonment prevents further marginalising persons based on their sexual orientation or gender identity or subjects them to the risk of violence, ill-treatment or physical, mental or sexual abuse. However, these principles remain hypothetical, i.e., in theory rather than in reality. 

Varying fair play and fractured legal aid 

“Jail is the place where you are acutely made aware of your transness” – Tanmay Nivedita.  

Indeed, trans people undergo the harshest treatment when behind the bars, as if imprisonment is not punishment enough. They face poor legal aid, impoverished legal representation, assault, harassment, discrimination, ill-treatment, and everything in between while imprisoned. It is widespread that trans persons rot in prison before they receive any legal help. They face a lot more hardships in comparison to a straight person. 

The Constitution of India has various articles for the well-being of socially, economically and educationally backward class groups; some of them can be made applicable specially and explicitly for transgenders. Article 39A of the Indian Constitution ensures free legal aid to the poverty-stricken and weaker sections of society. Article 14 provides that no individual should be discriminated against based on religion, race, sex, caste or place of birth. The State shall provide equality before the law and equal protection of laws to all individuals. Article 22(1) provides that any individual who is arrested cannot be kept in official custody for questioning without information on the grounds of arrest. Also, it provides that no individual shall be refused the right to consult and be defended by a legal practitioner of their choice. 

The aforementioned articles ensure free legal aid, the right to be represented, and just and fair treatment to all individuals irrespective of their gender. But are the rights and privileges only on paper? Let us find out.

Except for Delhi, all the 28 states and seven union territories have been unsuccessful in recognizing the community’s need for free legal assistance. There is an income ceiling limit for availing free Legal Aid. For instance, according to the information shared on the National Legal Services Authority website, Delhi has three distinct categories for free legal aid, that are, a distinct category for senior citizens, one for transgender and one for the general category. For the senior citizens and trans community, the earnings limit is 2 Lakhs and for the rest of the residents, a limit of 1 Lakh is prescribed. 

Trans persons, especially those who belong to marginalized communities, face a lot more danger than other prisoners. The National Crime Records Bureau (NCRB) being the sole government body to maintain amalgamated prison statistics disclosed that the prisons of India have an exclusively large population of Dalits, Adivasis, and Other Backward Class (OBCs). Even amongst the transgender inmates, a huge number of inmates belonged to Dalit, Adivasi, and OBC caste identities. 

The concept of purity is not only deduced by an individual’s gender alone but also by their caste. In this context, it should not be startling to find the trans community to get weak behind bars.

The plight of transgenders in the global prison system

The community of Transgenders is not only an outcast in the external world but also when they are separated from the common population. Trans people undergo a lot of violence and abuse, usually sexual abuse, which are often perpetuated by prison guards more than the prisoners behind the four walls. The trans community is marginalized and sometimes excluded from the community, which is why the issues associated with the detaining of transgender people have not seen major progress. Many a time, if they raise their voice, they are shushed. Also, they are unrepresented. It does not make much difference whether the country is developed or not, because they still face challenges regarding how the prison guards, authorities and prisoners are treated. Let us read about the problems they encounter in the global prison system and the related legal framework.  

The United Kingdom  

In 2019, Policy Framework was published on transgender incarceration by the Ministry of Justice (United Kingdom) providing details and compulsory actions associated with the care and management of trans inmates in prisons, Youth Secure Estate, Approved Premises (AP), Probation and private providers who provide services on behalf of HMPPS. This policy further states that all the information of trans prisoners facing any issues like mental health and personality disorder, risk of suicide, physical health issues, learning disability/disabilities must be apprised to attain a result that balances risks and promotes the safety of all inmates behind the bars. 

As per an article published in The Telegraph, half of the prisons in England and Wales are holding at least one trans inmate. According to another website, trans inmates undergo a lot of challenges including lack of support, exclusion and facing biased treatment from inmates and prison staff members. These challenges may have their roots in the staff of the prison who do not feel equipped to support trans inmates, maybe for the reason that there is a lack of training and guidance, less or no support from the staff and minimal to scarce resources. Not every staff member is aware of the problems faced by trans inmates, some of them include- misgendering, complex family situations, high risk of homelessness, and abuse upon release. All these problems can result in trans prisoners feeling isolated and not having complete faith in the criminal justice system.

United States

The court in the United States has recognised that the underlying condition of gender identity disorder is substantial, and the provision of medical service includes the provision of hormones and surgery wherever appropriate. Inside the state prisons, transgenders are oftentimes denied any transition-related medical care. Transgender persons who have not undergone any genital surgery are generally classified according to the gender they were assigned at birth for admission into prisons, despite how long they have been behind the bars as members of other genders, and despite how much other medical aid they may have received.

Canada

In Canada, correctional institutions were used to allocate trans prisoners a prison based upon their sex assigned at birth instead of the one they identify themselves with. The trans prisoners in Canada face discrimination and intimidation, and exposure to various types of abuse. So,  Bill C-16, an Act to amend the Canadian Human Rights Act and the Criminal Code, became law in June 2017, which added “gender identity” and “gender expression” in the prohibited grounds of discrimination and further prevented the federal government from exercising prejudice on the grounds of gender identity and expression, inclusive of prisons. Moreover, Prime Minister- Justin Trudeau assured that he would “look at and address” trans prisoners’ rights in prison and recognize that trans rights are human rights and that care must be taken that these prisoners end up in the facilities which match their gender identity and that everyone’s dignity and rights are defended in every way. 

Australia 

Any unjust treatment or discrimination based upon gender is strictly prohibited by the Australian Human Rights Commission Act. Similarly, there are other laws like the Victoria Equal Opportunity Act, Western Australia Equal Opportunity Act, Sex Discrimination Act, etc which ensures the rights of different sexes. Despite all such laws, there remains a persistent concern with the treatment and handling of transgender people in prisons. Sometimes they do not even get the basic essential treatments. Also, at times, they are victims of prison violence. Moreover, how they are allowed to dress up, the personal items they are permitted to buy, the titles they are referred to by the prison authorities and officials do not create hope for a bright future. Sometimes, they also harm themselves.

India

The Supreme Court paved a path for the third gender in the recent NALSA Judgment. Several articles are enshrined in the Constitution of India for the benefit of the marginalized sections of society. Also, many Directive Principles of State Policy provide for equal opportunities for all, irrespective of gender, to thrive in society. The High Court of Bombay has also pondered about formulating special guidelines for trans prisoners as this problem needs to be tackled effectively. Time and again, complaints have been made that the prison authorities behave in an insouciant manner with trans inmates. A special ward for trans persons should be made and can be considered the need of the hour considering the ill-treatment they undergo daily behind the bars. 

Proposed solutions

Prisons have worked hard to implement the necessary reforms, with the growing awareness of the rights of trans people. But these reforms hardly meet the minimum change required for including trans people into the functional society. Various efforts and campaigns are undertaken by the government and other organisations for educating inmates about sexism amongst the prison staff. Nevertheless, these efforts have very little impact.  

There is a dire need to bring numerous changes to the existing system. Different prisons must be set up for genderqueer people. Also, trans people should be given the choice to choose the prison they want to be admitted into. To address the issues and troubles of transgenders, medical facilities must all be revised. Their gender identity must be respected, irrespective of whether they have transitioned their gender or not, to not exacerbate the gender dysphoria experienced by this tyrannized class.

The State Government, Central Government and the prison authorities can improve the conditions of trans persons behind the bars by taking into account the separate needs of trans persons while keeping in mind the safety of the majority of the population in prison. Following are the suggestions that can be implemented in prisons to cater to the needs and address the issue of transphobia in prisons: 

1. The Central and State governments can develop policies and schemes which pay attention to the specific requirements of trans persons in prisons, provide better medical facilitation, and include activities for the welfare, recreation and education of trans persons.
2. The authorities like National Legal Service Authority (NALSA)  and State Legal Service Authority (SLSA) may arrange programmes for raising awareness of prisoners on issues related to gender recognition and sexual orientation inside prisons, regularly. 
3. The Central and State Government must provide training for prison officers and wardens paying special attention to enlightening them about gender recognition and sexual orientation. 
4. The prison staff must evolve to understand that not every trans person needs sex reassignment surgery or gender-affirming certificates to live contently. They must also respect self-proclaimed identities and must not ask for any medical or legal proof for justifying their gender. 

It is pivotal that the policies which are to be implemented must not divert their focus from the main issue which needs to be solved- how to protect individuals who are vulnerable to abuse in prisons. It is prayed that the State and Central Government along with the prison staff and other organisations handle the problems faced by transgenders in prisons in a considerate and flexible manner so that they can live safely and happily with their gender identity. The battle for homosexuals to have the same privileges as heterosexuals is one that has been combated for decades. 

Conclusion

With India being a nation that takes pride in its diversity, it is quite a shame that not all factions of society are accepted. The community, which is referred to as that of demi-gods, which the kings would go to seek advice in the olden times, which we still consider to be auspicious especially during marriages and child-birth, lives a life of destitute in India. All we see is them begging at railway stations, on traffic signals and in functions giving blessings to everyone, for which they barely receive any money in the form of alms. 

The condition of trans persons in prisons is not so good either, in fact, it is quite distressing, be it in India or the aforementioned nations. The State and Central Government along with the prison staff must take measures to address the difficulties faced by the transgenders in prisons and develop policies for such issues so they too lead a safe and happy life in the gender they recognise themselves with. Trans prisoners should have the same status, facilities, protection and treatment as other prisoners. It must be noted that, if any nation needs to reach its full potential, it must welcome positive changes with open arms, including prison reforms. 

References

• https://thewire.in/lgbtqia/transgender-prisoners-india 
• https://www.verywellhealth.com/transphobia-5077602#history 
• http://arguendo.co.in/2015/01/the-plight-of-transgenders-in-globa/ 
• https://www.thecritegal.com/post/transphobia-in-indian-prisons-the-dark-reality 
• https://www.penalreform.org/blog/transgender-people-in-prison-the-double-punishment/ 
• https://timesofindia.indiatimes.com/readersblog/ajayamitabhsumanspeaks/transphobia-acceptance-of-third-gender-in-indian-society-30696/ 

---

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.