The ‘double punishment’ of transgender prisoners: a human rights based commentary on placement and conditions of detention.

Approach: There is limited global data on numbers of incarcerated transgender people, an identified vulnerable prison group. There are inherent difficulties for prison authorities regarding placement, security aspects and management of transgender persons. While the concerns apply to all transgender prisoners, the current literature focuses mainly on transgender women and this commentary reflects this present bias. A socio-legal approach describes and evaluates international human rights’ conventions and human rights’ law, soft law instruments mandating non-discriminatory provisions in the prison setting, and relevant European and domestic case law. Purpose: The incarceration of transgender people is described as a “double punishment” based on lack of gender recognition and ability to gender affirm, and with their experiences and conditions in prison tantamount to torture. The purpose of this Viewpoint is to, illustrate the continued “double punishment” of incarcerated transgender people (in particular trans-women) and identify and describe breaches in human and gender rights and minimum standards of care. Findings: Transgender prisoners experience amplification of trauma underpinned by lack of legal gender recognition, inability to gender-affirm, discrimination, transphobia, gender maltreatment and violence by other prisoners and prison staff. Despite obligations and recommendations in international human rights’ instruments, and standard operational procedures at the prison level, very few countries are able to fully uphold the human rights of and meet the needs of transgender people in prison. Originality: This Viewpoint is important as it highlights the dearth of knowledge exploring human rights discourses and concerns related to the phenomenon of incarcerated transgender persons. It uniquely focusses on European and domestic law and illustrates the inherent tensions between human rights, sexual orientation and gender identity rights and security considerations regarding transgender issues in 2 prisons. ...