Transgender Prisoners Often Vulnerable and Need to be Better Managed Says Ombudsman

transgender_logoPrisons need to be more flexible and proactive in managing transgender prisoners, based on their individual needs and circumstances, so that they can live safely, said Prisons and Probation Ombudsman (PPO) Nigel Newcomen. Today he published a bulletin on lessons that can be learned from his investigations.

The bulletin draws on recommendations from investigations into deaths in custody, as well as complaint investigations. It identifies six lessons from past cases that aim to protect transgender prisoners better from bullying and harassment and to support transgender prisoners better to live in their gender identity while in prison. It is difficult to estimate precisely how many serving prisoners are transgender, but while the number is growing, it is still relatively small – approximately 80. Nearly all of the complaints received, and deaths investigated (five between 2008 and August 2016) were related to transgender female prisoners, nearly all of whom were housed in the male estate.
Prisons house male and female prisoners separately, and will usually distinguish gender based on that which is recognised by law. According to the Gender Recognition Act 2004, proof of gender is determined either by the person’s birth certificate, or a gender recognition certificate (GRC). The process for obtaining a GRC is complex. Because of the process and the cost involved, because of the symbolism, or because it can have implications for existing marriages, many transgender people choose not to obtain a certificate. Most transgender prisoners are, at least upon first arrival in prison, housed according to the gender they were assigned at birth.

The regulations that guide the care and management of transgender prisoners in England and Wales are found in a Prison Service Instruction (PSI), issued in November 2016. Many of the lessons outlined, and many of the recommendations previously made by the PPO, are reflected in the new PSI.

Previous research has shown there is a greater prevalence of mental health concerns and risk of suicide in the transgender population. When a person enters prison, they leave behind what support they had in the community. The prison environment can be particularly difficult for transgender prisoners, exacerbating existing vulnerabilities.

The bulletin highlights the need for:

  • evaluating the location of a transgender prisoner based on an individual assessment of their needs and considering the possibility of them residing in the estate of their acquired gender;
  • all relevant people involved in a transgender prisoner’s care attending ACCT case reviews (for those deemed at risk of suicide or self-harm);
  • meaningfully investigating all allegations of transphobic bullying and harassment and taking steps taken to challenge and prevent it;
  • personal officers having regular, meaningful contact with transgender prisoners, staff being aware of their vulnerabilities and challenging inappropriate behaviour;
  • local policies to be in line with national guidance and not imposing unfair additional restrictions; and
  • reasonable adjustments being made for transgender prisoners to help them to live in their gender role.

Nigel Newcomen said:

“My office has historically received few complaints from prisoners identifying themselves as transgender, and, fortunately, has investigated relatively few deaths of transgender individuals in custody. However, more recently, these numbers have been climbing. Last year, in quick succession, two transgender women tragically took their own lives while in custody. A third transgender woman is thought to have taken her own life in November 2016, and a fourth in December 2016.

“Prisons are always difficult environments, never more so than in recent months, but they have a fundamental responsibility to keep prisoners safe and to protect and support those with particular vulnerabilities. Transgender prisoners are among the most vulnerable, with evident risks of suicide and self harm, as well as facing bullying and harassment.

“This bulletin also coincides with a long-awaited review of the Prison Service Instruction (PSI) that governs the care and management of transgender prisoners. This PSI reflects the appropriately heightened awareness of transgender issues in prison – and in society as a whole.”

A copy of the report can be found on our website from 10 January 2017. Visit www.ppo.gov.uk.

Supreme Court recognises transgender as third gender

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In a landmark judgment, the Indian Supreme Court has created the “third gender” status for transgendered people when until now they were forced to write male or female against their gender.

They are now to be known as belonging to an ‘Other Backward Class’ – OBC.

Other Backward Class (OBC) is a collective term used by the Government of India to classify castes which are educationally and socially disadvantaged. It is one of several official classifications of the population of India, along with Scheduled Castes and Scheduled Tribes (SCs and STs). The OBCs were found to comprise 52% of the country’s population by the Mandal Commission report of 1980, a figure which had shrunk to 41% by 2006 when the National Sample Survey Organisation took place.

The SC asked the Court to treat transgender as socially and economically backward or disadvantaged.

The apex court said that transgenders will be allowed admission in educational institutions and given employment on the basis that they belonged to the third gender category.

The SC said absence of law recognizing a third gender could not be continued as a ground to discriminate them in availing equal opportunities in education and employment.

This is for the first time that the third gender has got a formal recognition. The third gender people will be considered as OBCs, the SC said.

The SC said they will be given educational and employment reservation as OBCs.

The apex court also said states and the Centre will devise social welfare schemes for third gender community and run a public awareness campaign to erase social stigma.

The SC said the states must construct special public toilets and departments to look into their special medical issues.

The SC also added that if a person surgically changes his/her sex, then he or she is entitled to her changed sex and can not be discriminated.

The apex court expressed concern over transgenders being harasssed and discriminated in the society and passed a slew of directions for their social welfare.

The apex court said that trangenders were respected earlier in the society but situation has changed and they now face discrimination and harassment.

It said that section 377 of IPC is being misused by police and other authorities against them and their social and economic condition is far from satisfactory.

The bench clarified that its verdict pertains only to eunuchs and not other sections of society like gay, lesbian and bisexuals who are also considered under the umbrella term ‘transgender’.

The bench said they are part and parcel of the society and the government must take steps to bring them in the main stream of society.

The apex court passed the order on a PIL filed by National Legal Services Authority (NALSA) urging the court to give separate identity to transgenders by recognising them as third category of gender.

Welcoming the Supreme Court decision, Lakshmi Narayan Tripathi, transgender rights activist said, “the progress of the country is dependent upon human rights of the people and we are very happy with the judgment as the Supreme court has given us those rights.”