In response to contemporary concerns and calls to address the unprecedented expansion of the prison industrial complex, the international legal community highlighted the rights and dignity of incarcerated individuals as a focal point of modern human rights discourse. [1]While the United Nations (U.N.) has addressed special considerations for incarcerated women and children, the unique needs of transgender and gender non-conforming (TGNC) prisoners are perpetually overlooked and represent a critical gap in global criminal justice policy.[2] Conventional incarceration models continue to operate under binary frameworks that neglect the identities and experiences of TGNC individuals.[3] In the absence of explicit policy recommendations, TGNC rights remain largely unaddressed in correctional institutions as individuals are misgendered, denied access to gender-affirming care, and housed in accordance with their assigned sex at birth, rather than their gender identity.[4] The lack of international policy recommendations and guidelines render TGNC prisoners more susceptible to human rights violations and neglect, and it is imperative that the U.N. and the international legal community center TGNC voices in future strides toward criminal justice reform.[5]
Various U.N. committees have classified the systemic dehumanization and mistreatment of TGNC prisoners as a form of torture.[6] Although the U.N. has published numerous bodies of key principles, policies, and guidelines to address the human rights of international prisoners, guidance remains limited for the treatment of TGNC inmates. The 1988 United Nations General Assembly resolution titled, “Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,” urges “every effort be made so that the Body of Principles becomes generally known and respected.”[7] The first five principles call for “respect for the inherent dignity of the human person,” with special considerations for women and children to ensure that incarcerated persons are not subjected to torture or cruel punishment.[8] The Bangkok Rules expand upon specialized considerations for incarcerated women, and they include recommendations for personal hygiene products and comprehensive health care screenings to address mental health and reproductive care.[9] In 2020, the United Nations Development Programme (UNDP) released the U.N.’s first comprehensive report to assess international policies and practices on the treatment of TGNC prisoners and inform future guiding practices to confront the needs of incarcerated TGNC individuals.[10] Across the globe, TGNC prisoners faced heightened vulnerabilities in correctional facilities, including increased rates of harassment, discrimination, gender dysphoria, and the systematic refusal of gender affirming housing and healthcare. [11]
Best practices to protect the rights of incarcerated TGNC individuals include appropriate housing placement, proper training for prison staff to affirm TGNC identities, and access to gender-affirming healthcare.[12] International best practices for TGNC housing empowers individuals by granting them agency in housing determinations, which allows individuals to be housed according to gender identity instead of assigned sex at birth.[13] The Ministry of Justice of England and Wales states that granting TGNC offenders gender affirming housing will, “in the great majority of cases, represent the most humane and safest way to act.”[14] This principle is embodied in various global prison models, including in countries like Argentina, Columbia, and Ecuador, where inmates “are consulted and invited to weigh in on the decision regarding their placement in correctional facilities.” [15] In contrast, UNDP rejects practices that segregate TGNC prisoners as discriminatory, stigmatizing, and ultimately ineffective in promoting institutional safety and wellbeing.[16] Correctional facilities in the United Kingdom embrace an intermediary approach where a prison board considers the nature of an individual’s offenses in TGNC housing determinations.[17] However, this model still reinforces a segregationist housing model that groups TGNC inmates together in an isolated facility, rather than housing individuals in facilities that align with their gender identity. [18]
The United Kingdom has embraced best practices for gender affirming presentation and expression in correctional facilities, as uniform staff policies allow the use of gender affirming pronouns and attire among inmates.[19] UNDP recommendations highlight the Mandela Rules to advocate for gender affirming clothing in correctional facilities, suggesting that this right is embodied in Rule 19 which requires that “Every prisoner who is not allowed to wear his or her own clothing shall be provided with an outfit of clothing suitable for the climate and adequate to keep him or her in good health. Such clothing shall in no manner be degrading or humiliating.”[20] Furthermore, Scotland and New Zealand have adopted policies that align with best practices for inmate identification, as staff members are required to use inmate’s preferred names and pronouns in verbal communication, written notes, and information management systems.[21] The use of preferred names, titles and pronouns is fundamental to uphold the dignity of incarcerated TGNC individuals, and UNDP praises this practice as an effective approach to “improve[] prison management by facilitating a more cooperative relationship between transgender prisoners and others, while reducing stress, depression and anxiety.”[22] Furthermore, best practices encourage comprehensive training among correctional staff to promote cultural competency in all staff-inmate interactions.[23]
Access to gender affirming healthcare is imperative to ensure safety and reduce gender dysphoria, depression, and suicide among TGNC prisoners.[24] Malta’s correctional model exemplifies a commitment to gender affirming healthcare for TGNC prisoners through a prison policy that states, “every effort should be made by Correctional Services to ensure access to the required/requested medical treatment that assists the inmates in aligning their physical characteristics with their gender identity.”[25] In order to combat gender dysphoria, the World Health Organization encourages correctional facilities to provide hormone therapy and mental health services for TGNC individuals.[26] International policies vary among levels of access to hormone therapy, as countries like Malta allow for the initial or continued use of hormones, while Italy and New Zealand only allow access to hormone therapy for individuals who were receiving treatment prior to incarceration.[27] It is imperative that the international legal community advocates for specialized treatment that extends beyond primary care and promotes the safety and wellbeing of incarcerated TGNC individuals.[28]
International incarceration models serve as a pivotal site to address systemic harm and to promote policies that humanize and dignify incarcerated persons worldwide.[29] Although international discourse has shifted towards a commitment to improving the conditions of correctional control, at-risk populations still face pervasive humanitarian harms.[30] The international legal community has not yet shifted towards theories of abolition, however recent efforts illustrate a commitment to reform.[31] TGNC individuals have been historically undermined in conversations of specialized care, and it is imperative that progressive policy and practices integrate gender affirming healthcare, housing, and training into future methodologies. By centering TGNC voices in future policy decisions, the international legal community must strive to uphold the inherent human rights and dignity of TGNC individuals throughout all socio-political institutions and structures.
[1] See Hassan Kanu, US Prisons Rife with Human Rights Abuses, especially Against Black People, UN Says, Reuters (Oct. 4, 2023, 10:26 AM) https://www.reuters.com/legal/government/column-us-prisons-rife-with-human-rights-abuses-especially-against-black-people-2023-10-04/.
[2] Press Release, UNHRC Targeted and tortured: UN experts urge greater protection for LGBTI people in detention.” UN Human Rights Office of the High Commissioner. Geneva, Switzerland. 23 June 2016.
[3] See Richard Saenz, A Crisis Behind Bars: Legal Issues Impacting Transgender People in Prisons ABA (Jan. 22, 2024) https://www.americanbar.org/groups/criminal_justice/publications/criminal-justice-magazine/2024/winter/crisis-behind-bars-legal-issues-impacting-transgender-people-prisons/.
[4] Id.
[5] Mapping of Good Practices for the Management of Transgender Prisoners, Literature Review, U.N. Office of Drugs and Crimes, https://www.undp.org/sites/g/files/zskgke326/files/2023-03/UNDP-TH-the-mapping-of-good-practices-for-the-management-of-transgender-prisoners.pdf (last visited Apr. 16, 2023) [hereinafter Good Practices]
[6] Id.
[7] G.A. Res. 43/173 (Dec. 9, 1988).
[8] Id.
[9] G.A. Res. 65/229 (I), ¶ 5-6 (Dec. 21, 2010) [hereinafter Bangkok Rules].
[10] Good Practices, supra note 5, at 10-11.
[11] Id.
[12] Id. at 7.
[13] Id.
[14] Id.
[15] Id. at 15.
[16]Id. at 16.
[17]Stephanie Saran Rudolph, A Comparative Analysis of the Treatment of Transgender Prisoners: What the United States Can Learn from Canada and the United Kingdom, 35 Emory Int’l L. J. 95, 114-15 (2021).
[18] Id. at 115.
[19] Id.
[20] Good Practices, supra note 5, at 28; see G.A. Res. 70/175, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) (Jan. 8, 2016).
[21] Good Practices, supra note 5, at 10-11.
[22] Id. at 10.
[23] Rudolph, supra note 11, at 120
[24] Id.
[25] Good Practices, supra note 5, at 33.
[26] Aguirre, I. Y. et al. Prisons and Health. World Health Organization, Regional Office for Europe. Copenhagen, Denmark. 2014.
[27]Good Practices, supra note 5, at 35.
[28] See Id.
[29] See Jennifer Turner, The Fight Against Mass Incarceration Goes Global, ACLU (Sep. 25, 2015) https://www.aclu.org/news/smart-justice/fight-against-mass-incarceration-goes-global.
[30] Good Practices, supra note 5, at ii-iii.
[31] See Claire Mom, ‘Conditions Unsafe and Inhumane’ — UN Official Calls for Global Prison Reforms, The Cable (March 9, 2024, 9:51 AM) https://www.thecable.ng/conditions-unsafe-and-inhumane-un-official-calls-for-global-prison-reforms/.
