LGBT people in prison

The bill mentioned in "Transgender Prisoners: A Critical Analysis of Queensland Corrective Services' New Procedure" has shown to be largely ineffective.[11]

In 2010 it was reported that Italy was to open its first transgender prison at Pozzale, a decision welcomed by gay rights groups.[12] As of 2013, the prison has not been created yet.[13]

One in 13 Japanese people identify as LGBT, or about 7.6% of the population. Japan does not criminalize same-sex sexual acts, and transgender people are able change their gender through the Family Registry if certain conditions are met. However these conditions include requiring “gender confirmation surgery, being over 20 years old, being unmarried while applying to legally change one's gender, having no minor children, and being deprived of their reproductive organ or reproductive ability” according to Amnesty International. If a person has not legally registered to change their gender before being incarcerated, they will be sent a prison that matches their gender assignment at birth. Additionally Japanese prisons are not required to provide hormone therapy for transgender inmates; since the medication isn't to treat a disease, the prisons aren't required by law to treat them. According to Amnesty International “Japan's Act on Penal Detention Facilities and Treatment of Inmates and Detainees (Act on Penal Detention) does not have specific clauses that cover the treatment of detainees based on sexual orientation or gender identity”. However Article 34.2 of Act on Penal Detention requires that female prison officers examine female detainees, and the practice is also extended to transgender women regardless of their status with gender confirmation surgery or not.[14]

In 2019, the Ministry of Justice (United Kingdom) published data on transgender incarceration in England and Wales:[15] there are 163 transgender prisoners (up from 139 reported in 2018), with 62 of the 121 jails housing at least one transgender prisoner. Prisoners are included in the data if they are being considered by a transgender case board, and known to be living in or presenting as a gender different from their sex assigned at birth. These figures may be underestimates in part because they do not include prisoners holding Gender Recognition Certificates under the Gender Recognition Act 2004.

U.S. prisons have a general policy of housing prisoners according to their sex as assigned at birth or genital configuration (e.g. post-op trans women would be placed in women's prisons), regardless of their current appearance or gender identity.[1] Transgender women with breasts may be locked up with men, leaving them vulnerable to violence and sexual assault, as occurred with the case of Dee Farmer, a pre-operative transgender woman with breast implants, who was raped and contracted HIV when she was housed in a men's prison. Transgender men housed in women's prisons also face abuse, often more from guards than other inmates.[16]

U.S. prisons view gender and sex as binary; this includes prison dress codes, which prevent gender-nonconforming individuals from dressing to match their gender identity. There is often little gender-confirming healthcare provided. While transgender prisoners used to be permitted to be housed according to the gender with which they identify, this rule was reversed, as announced by the U.S. Bureau of Prisons in May 2018. Now, housing is once again to be determined by biological sex.[17]

On November 14, 2013, Harris County, Texas adopted an LGBT inmate policy, intended to protect and assure equal treatment of gay, lesbian, bisexual and transgender inmates. This allows individuals to be housed based on the gender they identify with instead of their biological sex. The policy also outlines how inmates will be searched. It includes a "safe zone project" that will endorse a "positive relationship of solidarity" connecting the sheriff's department and the gay community.[18] Another policy states that members of the transgender community will be referred to by their chosen name, even if it has not legally been changed, both when spoken to and on their identifications bracelets. The sheriff's office in Harris County has a training and certification program for staff members to become a "gender classification specialist" and have authorization to hold discussions with inmates about gender issues.[19]

Some courts in the US have ruled that hormone replacement therapy is a necessary medical treatment to which transgender prisoners are entitled. In the early 2000s, California Medical Facility, Vacaville, provided this medical treatment for male-to-female prisoners.[20] Additionally, access to psychological counseling and to supportive underclothing like bras can help individuals live as the gender with which they self-identify.

In June 2019, Layleen Polanco, a transgender woman of color, died of an epileptic seizure in solitary confinement on Rikers Island. Guards had noticed that she was unresponsive but waited 90 minutes to seek help.[21][22] A year later, it was reported that 17 corrections officers would be disciplined as a result of the incident.[23]

In 2011, the National Transgender Discrimination Survey found that 35% of black transgender Americans believe that they have been incarcerated simply due to perceived anti-trans bias, compared to 4% of white transgender respondents. Black transgender people had higher rates of experiences of incarceration in general (47% compared to 12% of white transgender people). It also found that black trans women were sexually assaulted in jail at a rate of 38%, compared to 12% of white trans women prisoners.[24]

In 2015, the National Assembly of Vietnam passed a law which allows transgender people who have done sex reassignment surgery to register under their preferred gender. Further discussion on the treatment of LGBTQ+ people has been initiated in many later meetings of the National Assembly, in which representatives suggested that homosexual and transgender inmates be placed in different places than others.[25] These suggestions were written into law in the 2019 Criminal Code of Vietnam, which went into effect on January 1, 2020. Many attorneys[26] and advocacy groups have praised this as a new step towards ensuring the rights of Vietnamese trans people, while others[27] point out that the law needs amendments that clearly define what these separate areas are like.

According to the new Criminal Code, beside groups like minors, foreigners, and mothers who carry their children of under 36 months into jail along with them, "inmates that are homosexual, transgender or people of unidentified gender can be imprisoned separately."[28][29] Due to the lack of coverage regarding non-binary people in Vietnam, the phrase "people of unidentified gender" is best understood as trans men or trans women who have not undergone sex reassignment surgery, while "transgender" refers to those who have.

Argentina

Opposite-sex conjugal visits have long been permitted, but a case in the central province of Córdoba has authorized same-sex conjugal visits as well. The ruling came after an inmate was twice punished with solitary confinement for having sex with his visiting partner in his cell. The inmate brought a lawsuit on the basis of a law that obliges authorities to "guarantee (the availability of) intimate relations for prisoners with their spouses or, alternatively, with their (partners)."[31]

Australia

In Australia, conjugal visits are only permitted in the Australian Capital Territory and Victoria. This includes visits by partners of the same-sex, provided they are not also incarcerated.[32] Conjugal visits of any type are not allowed in New South Wales, Queensland, South Australia, Tasmania, Western Australia and the Northern Territory.

Belgium

Both men and women are entitled to conjugal visitation as heterosexual couples. Belgium's prisons provide facilities where inmates can meet their spouses once a month for a maximum of two uninterrupted hours. There are however circumstances, as they apply to heterosexual couples as well, where these conjugal visits can be revoked.[33]

Brazil

In February 2015 inmates who register their same sex partner have the right to conjugal visitations in all of Brazil's jails. This decision was reached by the National Criminal and Penitentiary Council. The conjugal visit must be guaranteed at least once a month and cannot be prohibited or suspended as a disciplinary measure with the exception of certain cases where violations being restricted are linked to the improper use of conjugal visitations.[34]

Canada

All inmates, with the exception of those on disciplinary restrictions or at risk for family violence, are permitted "Private Family Visits" of up to 72 hours' duration once every two months. Eligible visitors, who may not themselves be prison inmates, are: spouse, or common-law partner of at least six months; children; parents; foster parents; siblings; grandparents; and "persons with whom, in the opinion of the institutional head, the inmate has a close familial bond." Food is provided by the institution but paid by the inmates and visitors, who are also responsible for cleaning the unit after the visit. During a visit, staff members have regular contact with the inmate and visitors.[35]

Caribbean region

Conjugal visits are not permitted in the Caribbean. Marcus Day, adviser to the Association of Caribbean Heads of Corrections and Prison Services has urged the implementation of opposite-sex conjugal visitation for male inmates and the provision of condoms within prisons in an effort to stop the spread of HIV.[36] Day attributes the spread of HIV/AIDS in prisons to "homosexual relationships among otherwise heterosexual men and homosexual rape," situations he said are rife in Caribbean prisons:"Allow men to have the women come and visit them in prison and have a private room where they can make love to each other and the desire to have same-sex relationships will be greatly reduced," claimed Day.[37]

Colombia

On October 11, 2001, the Colombian Supreme Court issued a verdict in favour of the right to same-sex conjugal visits in a case brought by Alba Nelly Montoya, a lesbian in the Risaralda Women's Prison. This was not the first case regarding same-sex conjugal visitation in the country. Marta Alvarez, another lesbian inmate, had been campaigning since 1994 for the same right, and on October 1, 1999 her case became the first ever sexual orientation-related case presented before the Inter-American Commission on Human Rights. In her petition, Alvarez had argued that her rights to personal dignity, integrity, and equality were being infringed upon by the denial to allow her conjugal visits in prison, since the Colombian National Penitentiary and Prison Institute (INPEC) granted conjugal visitation rights in a discriminatory fashion to heterosexual men and women (the latter restricted to visits from husbands only), and denied this right to same-sex couples.[38][39]

While the Colombian government admitted its failure to grant conjugal visitation to Alvarez constituted "inhuman and discriminatory" treatment, it continued to deny such visits, arguing reasons of security, discipline, and morality. Alvarez was also subjected to retaliatory disciplinary measures, including being transferred to a men's prison, which ceased following a domestic and international protest campaign.[38][40]

Costa Rica

In August 2008, the Costa Rican Constitutional Tribunal rejected a man's appeal in a lawsuit against prison authorities who stopped his conjugal visits to his male partner, a current inmate, ruling that gay inmates do not have the right to conjugal visits. In 2011, the court rejected this ruling and now allows same-sex conjugal visits.[41]

Israel

Gay prisoners in Israeli Prison System (IPS) are allowed conjugal visits with their partners under the same circumstances as heterosexual prisoners. This policy was revised in July 2013 under Association for Civil Rights in Israel chief legal attorney Dan Yakir challenged the lack of conjugal visits for same sex inmates since 2009.[42]

Mexico

In July 2007 through the efforts of the country's National Human Rights Commission (CDHDF), the Mexico City prison system began allowing same-sex conjugal visits on the basis of a 2003 law which bans discrimination based on sexual orientation. The visitor is not required to be married to the inmate. This policy change applies to all Mexico City Prisons.[43]

Russia

Same-sex long or official visits are prohibited, but short visits for friends can be organised if one is imprisoned in a so-called kolonija-poselenie. Official sex in prison is possible only during the 1–3 day long visit of a registered heterosexual spouse.

United Kingdom

Conjugal visits are not allowed to any prisoner regardless of sexual orientation,[44] but home visits are.

United States

In June 2007, the California Department of Corrections announced it would allow same-sex conjugal visits. The policy was enacted to comply with a 2005 state law requiring state agencies to give the same rights to domestic partners that heterosexual couples receive. The new rules allow for visits only by registered married same sex couples or domestic partners who are not themselves incarcerated. Further, the same sex marriage or domestic partnership must have been established before the prisoner was incarcerated.[45] In April 2011, New York adopted to allow conjugal visits for currently married, or civil-union spouses same-sex partners.[46]

In May 2006, two transgender prisoners filed suit in January 2008 challenging a Wisconsin law that bars inmates from receiving hormones or sex reassignment surgery notwithstanding Principle 9 of The Yogyakarta Principles.[16] The significance of the Yogyakarta Principles is also stressed by "Handbook on Prisoners with Special Needs"[47] published by the United Nations Office on Drugs and Crime.

The Supreme Court ruled in Farmer vs. Brennan (1994) that under the cruel and unusual punishment clause of the Eighth Amendment, prison officials cannot be deliberately indifferent towards blatant abuse directed against transgender prisoners. The protection of prisoners under the Eighth Amendment also extends to medical health care (i.e. hormone treatment and gender reassignment surgery).[48] Of the transgender inmates serving in Federal or State prison, 75%-90% desire gender reassignment surgery and 85% desire hormone therapy. This "treatment is critical to maintain the health and safety of inmates, as without it, transgender prisoners may fall into deeper depression and have greater risk of life-threatening autocastration".[48]

Solitary confinement is a potential punishment for those in prison, and it has known detrimental effects on prisoner physical and mental health. LGBT prisoners, who face similar health risks under solitary confinement as the general population, may be placed into solitary for their own protection, especially in the case of transgender individuals . The state however does not provide treatment for declining mental health, and prisoners in solitary have a hard time getting their medications. For transgender individuals this can mean missing hormone treatments and other necessary medical care.[49] Many prisons deny healthcare to transgender inmates, relying on binary medical services in gender-separated prisons. Furthermore, many are denied psychological treatment for Gender Dysphoria: distress caused by a mismatch between gender identity and sex assigned at birth.[50]

On August 31, 2001, the Canadian Human Rights Tribunal concluded that Sections 30 and 31 of the Correctional Service of Canada contained discrimination on the basis of sex and disability in Canadian Human Rights Act. After Synthia Kavanagh, a trans woman sentenced for life in 1989 for 2nd-degree murder, was sent to an institution for males. This institution assignment occurred despite the trial judge's recommendation that Synthia, as a trans woman, serve her sentence in a facility for women. Further, Synthia was denied sex reassignment surgery and hormones. The institutional policy, at the time, only facilitated cases which addressed conditions in which, reasonably, the plaintiff would seek sexual reassignment after the period of incarceration. Due to Synthia Kavanagh's life sentence, this was not a foreseeable option. "The decision to discontinue hormones in 1990 seems to have been based on the complainant's life sentence which made her, according to Dr. R. Dickey, apparently ineligible for ultimate reassignment. ... the diagnosis of transsexualism has been clearly established in this case" by expert witness testimony, throughout her trial, "She [had] responded well to feminizing effects of cross-gender hormones and has experienced no significant side effects. As established by legal precedent and confirmed by policy in Canadian and British Columbia Corrections Service, the complainant was entitled to continue her hormone treatment".[9]

In Petitioning the Canadian Human Rights Tribunal, Kavanagh argued that "The Correctional Service of Canada has discriminated and continues to discriminate against me because of my disability and sex (Transsexualism), contrary to Section 5 of the Canadian Human Right Act, by refusing to provide me with necessary medical and surgical treatment." Kavanagh continues to elaborate on her transition prior to imprisonment in this address, stating "since 1981 I have been diagnosed as a transsexual, which means that my gender is female but my sex is male. For 13 years, I was on estrogen hormonal treatment and lived as a woman, in preparation for my sex reassignment surgery to correct my medical disorder. In May 1990, my hormonal treatment was discontinued." After incarceration in a men's facility Kavanagh "repeatedly asked the CSC to arrange for evaluation for sex reassignment surgery, for the surgery to be performed and my consequent transfer to a women's institution." The discontinuation of hormone treatment and rejection of proposed sex reassignment surgery, paired with the continuation of periods of solitude prompted Kavanagh to respond "I believe that the CSC Policy discriminates against transsexuals, as the policy does not recognize the need for the continuation of medical treatment at the onset of incarceration, nor does the policy acknowledge the psychological need to be imprisoned with other members of one's psychological sex at the time of incarceration."[51]

The issue of surgical reassignment has worrying implications for incarcerated transgender people. Individuals serving life sentences or other periods of prolonged incarceration may be less able to "prove" that they live socially as their gender; because this is a requirement to qualify for surgical reassignment, it constitutes a serious institutional barrier for transsexual people attempting to access gender-affirming care.

Homosexuality is no longer criminalized in Russia, but “new laws have restricted LGBT and human rights organizations, limited LGBT content on the Internet, and restricted international funding for all non-governmental organizations, including AIDS Service organizations and LGBT groups.” HIV was the first and third leading causes of premature disability and mortality in Russia, and was initially concentrated among injecting drug users and their sex partners, and recently the transmission is being reported among men who have sex with men or MSM. “Recent studies have identified significant risks for HIV and prevalence estimates of 5.5–6.0% among MSM in St. Petersburg and Moscow.” Russia requires reporting of HIV positive diagnosis, which many immigrants avoid participating in as it could prevent them from entering the country, or they could be detained and expelled from the country as well. Homosexuality or the advocacy of LGBT rights in Turkmenistan, Uzbekistan is criminalized, which causes many LGBT people to migrate to Moscow.[52] As a result, fear of testing HIV positive and being expelled from Russia to return to their countries of citizenship where they could in turn have their sexual behavior criminalized, prevents many immigrants in Russia from accessing the health care and treatment they need.

Hungary has compulsory HIV testing, which is part of the Ministry of Health regulations, which requires prostitutes, homosexuals, and prisoners be tested for HIV. When prisoners are found to be HIV positive they are taken to a special unit in Budapest. Units for HIV positive prisoners are staffed with individuals who are trained and who understand the problems of HIV. Specialized treatment of HIV are only available at one hospital in Budapest. HIV treatment for prisoners is paid for by the NHS. These prisoners have their own cells with their own showers, a community room with games, and a social worker available to them. Post test counseling is also provided.[53]

Gay and bisexual men are often assumed to be responsible for the preponderance of sexual assaults perpetrated in prisons as has been reflected in various American judicial decisions. For example, in Cole v. Flick[nb 2] the court upheld the right of prisons to limit the length of inmates' hair, claiming that allowing them to wear long hair could lead to an increase in attacks by "predatory homosexuals".[61] In Roland v. Johnson,[nb 3] the court described "gangs of homosexual predators". And Ashann-Ra v. Virginia[nb 4] contains references to "inmates known to be predatory homosexuals [stalking] other inmates in the showers".

According to a study by Human Rights Watch, however, "The myth of the 'homosexual predator' is groundless. Perpetrators of rape typically view themselves as heterosexual and, outside of the prison environment, prefer to engage in heterosexual activity. Although gay inmates are much more likely than other inmates to be victimized in prison, they are not likely to be perpetrators of sexual abuse."[5] (see also situational homosexuality)

A related problem is that there is a tendency, among both prison officials and prisoners, to view victimization as proof of homosexuality: "The fact of submitting to rape—even violent, forcible rape—redefines [a prisoner] as 'a punk, sissy, queer.'" Officials sometimes take the view all sex involving a gay prisoner is necessarily consensual, meaning that victims known or perceived to be gay may not receive necessary medical treatment, protection, and legal recourse, and perpetrators may go unpunished and remain able to perpetrate abuse on their victims:[62]

I have been sexually assaulted twice since being incarcerated. Both times the staff refused to do anything except to lock me up and make accusations that I'm homosexual.

According to Andrea Cavanaugh Kern, a spokesperson for Stop Prisoner Rape, the combination of high rates of sexual assault against gay prisoners and high rates of HIV infection in the prison population is "a life-or-death issue for the LGBT community".[16]

While much of the data regards male prisoners, according to Amnesty International, "perceived or actual sexual orientation has been found to be one of four categories that make a female prisoner a more likely target for sexual abuse".[3] It wasn't until 2003 that PREA (Prison Rape Elimination Act) was enacted by United States Congress to aid in the prevention of sexual abuse and misconduct. [63]

In 2019, la Defensoría del Pueblo identified 285 cases of violence and discrimination against LGBTI prisoners. Over a third of these victims were transgender. One-eighth were Venezuelan.[64]

In San Francisco, for example, transgender inmates are automatically segregated from other prisoners. Nevertheless, according to Eileen Hirst, San Francisco Sheriff's Chief of Staff, being gay is not in itself enough to justify a request for protective housing: inmates requesting such housing must demonstrate that they are vulnerable.[68]

For financial or other reasons segregated housing is not always available. For instance at Rikers Island, New York City's largest jail, the segregated unit for LGBT prisoners, known as "gay housing", was closed in December 2005 citing a need to improve security.[68] The unit had opened in the 1970s due to concerns about abuse of LGBT prisoners in pretrial detention. The New York City Department of Corrections' widely criticised plan was to restructure the classification of prisoners and create a new protective custody system which would include 23-hour-per-day lockdown (identical to that mandated for disciplinary reasons) or moving vulnerable inmates to other facilities.[69] Whereas formerly all that was required was a declaration of homosexuality or the appearance of being transgender, inmates wanting protective custody would now be required to request it in a special hearing.[70]

In the report, 44% of transgender male respondents and 40% of transgender women respondents who were imprisoned reported being harassed by officers and/or other staff members of the prison system.[71] While in solitary confinement, transgender individuals are less likely to receive medical care.

Out of the respondents in the same report 12% of transgender individuals surveyed reported being denied routine non-transition related healthcare and 17% reported being denied hormone treatment. The number was disproportionately higher when transgender people of color reported lack of transition health care and hormone treatment with American Indians reporting 36% denial and Black and/or African American reporting a 30% denial rate.[71] The use of solitary confinement also lessens transgender inmate's access to programs and work assignments where they may be able to lessen their sentences, enter rehabilitation programs, or earn money to buy basic products such as soap and also lessens their chances to obtain parole or conditional release.[72]

Solitary confinement has also shown to affect the mental health of transgender prisoners. With the report of filed by Injustice at Every Turn,[71] 41% of respondents reported attempted suicide. With transgender people of color, 56% of American Indian and 54% of multiracial individuals reported attempted suicide. The report also links the over-use of solitary confinement as a factor in the high rate of suicide attempts by transgender people of color within the prison system.[72]

In addition to the conditions themselves amounting to torture, solitary confinement usually restricts a person's access to education, work, and program opportunities. While mental health is a key priority and emphasis for inmates subjected to solitary confinement, there are other discriminatory disadvantages that come with it as well. For example, education and work programs are often essential prerequisites to achieving good time and parole. This means that many LGBT people, who are more likely to be placed in solitary confinement, are also less likely to be paroled or released early, forcing them to serve out their maximum sentences.[50] Activists argue that members of the LGBT community should have equal access to prison programs and services, a right protected and provided for under the Fourteenth Amendment of the U.S. Constitution.[48]

According to Title IX of the Education Amendments, discrimination on the basis of sex is illegal. Many education programs in prisons, jails, and juvenile detention centers are funded by the Federal government and those who take funding from the government must adhere to the full tenets of these amendments. Title IX extends to protect inmates who are denied access to prison programs and resources because of their gender identity or sexual orientation.[73] The Fourteenth Amendment asserts that all inmates should have equal access to libraries, educational programs, the internet, and corresponding resources.[50]

In cases where the incarcerated are assigned to prisons based on sex, rather than their gender-identity, complete segregation is often seen as the only viable way for ensuring safety. In the case of Synthia Kavanagh, she was assigned to a male institution despite explicit recommendations from the trial judge. As a result, Kavanagh was "placed in segregation over extended periods of her incarceration for the purpose of protection from self-harm or abuse by others. Segregation for prolonged periods is not only inhuman but [is additionally] unconducive to any prospect of stabilization or rehabilitation."[9]