The Council of Europe’s Committee for the Prevention of Torture (CPT) has issued a set of standards and recommendations to European prisons aimed at ensuring that transgender prisoners, a highly vulnerable segment of the prison population, are treated with respect and protected from the risks of ill-treatment.
In its annual report for 2023, the CPT notes that it is increasingly meeting transgender persons held in prisons during its visits to states to monitor the conditions of detention of persons deprived of liberty. The CPT aims to provide guidance to governments and prison administrations, considering that European countries are currently implementing divergent policies and that there is a current debate as to how to treat transgender persons in prison.
CPT President Dr Alan Mitchell said: “Prisons are a microcosm of society, often with amplified issues given the smaller confined settings. Transgender persons held in detention can be in a situation of vulnerability and a heightened risk of intimidation and abuse. It is concerning that a few states still deny the existence of transgender persons and make no specific provision for their treatment in prison, which may expose them to ill-treatment. Governments should put in place safeguards to protect transgender persons in detention and ensure that they are treated with dignity and care”.
According to the CPT, when making decisions on the management of transgender persons, prison managers should promote their respectful treatment by adopting an inter-disciplinary approach, taking into account legal, medical and social aspects, and establishing specific safeguards to prevent their ill-treatment by prison staff or other prisoners.
The report identifies as a challenge the widely divergent criteria of placement of transgender persons throughout Europe depending on individual states’ policies. Some are based on self-identification and declaration, others on legal recognition, and a few on gender-affirming surgery. Few states have specific policies and legislation to guide prison authorities on placement of transgender persons, often done on a case-by-case basis subject to an individual risk assessment.
In line with the European Court of Human Right’s case law, the CPT highlights that national legislation should provide for the recognition of persons of a gender other than that assigned by birth and not establish any pre-condition to legal gender recognition such as gender-affirming surgery. Consequently, when a person self-identifies as transgender in the prison admission procedure, this should be sufficient for the prison administration to treat the person as such.
The CPT considers that transgender persons should be accommodated in the prison section corresponding to the gender with which they identify. Although there have been a few unfortunate cases of the placement in women’s prison sections of transgender persons accused or convicted of sexual offences against women, the committee highlights that, as for any other prisoners, they should only be placed elsewhere for exceptional security or other reasons after an individual risk assessment. In addition, transgender prisoners should be consulted about their placement preference during the entry procedure and be given the option to keep their gender identity confidential.
During its visits to several states, the CPT met transgender women prisoners held in male sections who stated they did not feel safe, and some alleged having been sexually abused and assaulted by other prisoners or verbally abused by staff. In some countries, the CPT also met transgender women who reported that they were often not allowed to shower at different times as male prisoners, were humiliated by being referred to by their male names or prohibited from wearing women´s clothes.
In the CPT’s view, transgender prisoners should be allowed to dress in the clothes associated with their self-identified gender and be addressed by their chosen names by prison staff. Prison administrations should also address them by their preferred names, titles and pronouns in verbal and written communication, irrespective of official documents. Further, national and prison authorities should ensure that all prison staff is trained to understand and address the specific needs of transgender persons and the risks they are exposed to in the prison environment.
The committee urges national authorities to address the risks of discrimination of transgender persons in prison and implement policies to prevent and combat ill-treatment by prison staff and inter-prison violence and intimidation targeting them. It also provides guidance to ensure that body searches of transgender persons are not perceived as degrading by the persons concerned.
The annual report also contains a specific reference to the possible impact of climate change on the work of the CPT, for example, in the context of heatwaves, since it can cause significant challenges to ensure adequate living conditions both for persons detained in places of deprivation of liberty but also for staff working in those places.
More generally, in 2023, the CPT carried out 18 visits: periodic visits to Albania, Armenia, Cyprus, Estonia, Hungary, Luxembourg, Malta, North Macedonia, Slovak Republic and Ukraine and ad hoc visits to examine specific issues to Bulgaria, France, Georgia, Germany (return flight), Greece, Serbia and the United Kingdom (two visits).
