The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment adopted its 33rd general report covering its activities carried out in 2023. The report includes a substantive section on transgender persons in prison. The choice to focus on this topic reflects “a dynamic and evolving social reality within European countries, with the Committee increasingly meeting transgender persons held in prisons” (§ 86).
In this section, the CPT builds on its own visit reports, as well as other CoE and international standards [1] to propose a number of principles aiming to “protect and ensure adequate treatment” for transgender persons in prisons (§ 89, paragraph numbers refer to the General report). The Committee also welcomes comments and practical suggestions of all stakeholders with experience in this field to improve its guidance.
Placement and prison location decisions
A frequent issue associated with transgender prisoners is placement decisions in prisons that were “devised around the needs of men” (§ 92), which compose the vast majority of the prison population.[2]
The CPT noted a variety of practice among States parties – some taking as a reference the person’s self-identification, others their legal recognition and a few a history of gender-affirming surgery. The CPT recommends that “as a matter of principle, transgender persons should be accommodated in the prison section corresponding to the gender to which they identify” (§ 98).
Isolation from the rest of the prison population should remain exceptional and temporary, and, when carried out, transgender persons should be offered “activities and association time with other prisoners of the gender with which they identify” (idem).
Risk of ill-treatment by staff & prisoners
The CPT stressed that the situation of vulnerability of transgender (and more broadly LGBTIQA+) persons in prison put them at risk of “potential intimidation and abuse by other detained persons, as well as by prison staff” (§ 101), especially when placed in a section accommodating persons of a different gender than to one they identify.
It therefore recommended states to adopt strategies including “preventive and corrective measures” (§ 105) to combat ill-treatment by prison staff and to reduce any incidences of inter-prisoner violence and intimidation.
Staffing
The CPT insisted that when transgender women are held in male sections, there should be female custodial officers on duty at all times. As regards body searches, the Committee recommended that the choice of the officer be decided on the basis of the “transgender person’s identity and preference” (§ 114).
Staff training is mentioned in several parts of the report, so that prison staff respects transgender persons’ gender identity. Referring to visit reports, the CPT mentioned cases in which transgender prisoners were prevented from expressing their identity and were called by their male names, were not allowed different shower times or to wear female clothing (see § 109 for detailed recommendations).
Access to healthcare
Stressing that transphobia, family rejection and discrimination are self-harm or suicide risk factors, the CPT recommended that transgender prisoners have “access to assessment and treatment in the same condition as in the community, including regular access to mental healthcare services and psychological support” (§ 118).
It also recommended that prison authorities “allow access to gender-affirming treatments and surgery for transgender prisoners”, and that “where such health services are included in national health insurance schemes, the cost should be absorbed at an equal rate as for transgender persons living in the community” (§ 122).
[1] See foonotes no. 4 and 5 in the General report. The CPT refers mainly to the Yogyakarta Principles and Additional Principles on the application of international human rights law in relation to sexual orientation and gender identity; the UN revised Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules); and the case law of the European Court of Human Rights and of the European Committee of Social Rights. Concerning specifically the training of healthcare staff, the CPT based its recommendation on the standards established by the World Professional Association for Transgender Health (WPATH).
[2] According to the latest SPACE statistics, male prisoners constitute on average 95% of the prison population in Council of Europe countries.
