The Indian Prisons and The Search for Equality: The Problems Faced by Transgender Inmates

Introduction

In the past few years, the Indian society has been quite vocal about the rights of people belonging to the LGBTQ+ community. Various laws and guidelines have been established, but society, in general, has not been able to come out of the orthodox mentality to combat such discrimination on a national level.

The term transgender [1], as defined by the Transgender Persons (Protection of Rights) Act, 2019 [2], refers to any person whose gender does not match with the gender assigned to that person at birth or someone who does not identify themself with the same gender at birth. The word transgender is considered as an umbrella for people of different sexual preferences, trans-man or trans-woman, people who have undergone sex reassignment surgery, hormone therapy, laser therapy, etc., people with intersex variations, gender queer and people having such socio-cultural identities as kinner, hijra, aravani and jogta.

Advisory issued by the Ministry of Home Affairs

The Ministry of Home Affairs issued an advisory dated January 10, 2022 [3], to all Union territories/ States in an effort to prevent any discrimination against people belonging to the Transgender Community in Prison and correctional facilities.

We will discuss the guidelines presented by the Government of India in light of the problems faced by the people belonging to the transgender community, with a special focus on the issue and the need for separate wards for transgender prisoners.

Identity [4] – every person recognised as a transgender person must have the right to gender identification and their identity should be respected at all times with regard to admission procedures, lodging, medical examinations, etc. The provisions of the Transgender Act provide for the provision of a transgender identity certificate, and the prison authorities should facilitate the process for acquiring the same if such a request is made by a person identifying themselves as a member of the transgender community.

The right to choose one's gender, as argued and held by the Hon’ble Supreme Court in the NALSA [5] judgment is an integral part to one’s dignity. The violation of one’s right to lead a life with dignity is surely and undoubtedly in contravention to one’s fundamental rights as guaranteed by the Constitution of India [6]. People from the transgender community should be provided with the right to self-identify and to identify with either the conventional binary genders or with a third non binary gender of a transgender classification. Transgender people are discriminated against in prison and there is no recognition of the gender they identify with, but their treatment or housing facilities depend on their biological features. In most cases, they are differentiated not based on their sexual preference or the gender they identify with but on their biological features. Many a times, a person who at birth was a male with male biological features but who identifies themself as a woman would be detained in a men's prison where they would be subjected to cruelty, humiliation, victim of sexual offences, etc. Therefore, preserving the right to self-identification is important to protect the interests of people in this community.

“I was in utter shock. How could they even imagine a woman surviving unscathed inside the male prison? Why did they not ask me if I preferred being among the women prisoners?”

This was the question posed by Kiran Gawli who spent 17 months in prison and was only one of the five transgender women among 2000 male prisoner (Shantha 2021). Kiran, although being a male at birth, identifies herself as one with a female identity. Despite her being aware of the fact that she is a transwoman and the humiliation and violation that she could face amongst male prisoners, she was shifted in a male prison based on her biological features and her birth gender, which does not determine who she is also, violating her right to self-determination of her gender.

Admission Procedures -   The horror faced by people from these communities starts right from the moment they enter the prison facilities' gates at the time of admission. The admission procedure consists of three aspects, namely [7]

1. Search procedure
2. Medical Examination
3. Allotment/placement inside prison

The objective of a search procedure is not to determine the sex of a particular convict but to prevent the entry of restricted contraband inside Indian Prisons or any other restricted items. The guidelines [8] also provide that the search procedure should not be aimed at determining the sex of an individual and should be carried out only by a person of their preferred gender or by a medical professional. As discussed above, an individual's dignity and privacy are to be duly maintained during the search procedure. Stripping is most often than not a part of the search procedure and, therefore, must be carried out, if necessary, in a separate/private space. The advisor has also advocated for the inclusion of the column of ‘transgender’ as a separate category in the prison admission register [9] other than male and female.

During search procedures, what generally happens is that prison officials force such people to strip on the pretext of a security measure, but it acts as a procedure of humiliation as they are subjected to invasive search procedures. In the case of a male, a search is carried out by a male prison official and a female prison official in the case of a female inmate. But the Model prison manual 2016 does not provide a mechanism to prescribe search procedures to be undertaken in the case of a transgender convict.

“Even though we asserted continuously that we are transwomen, the prison officials stripped us. They poked and probed at our bodies and were visibly amused, while cracking jest among themselves, at the fact that we identified as transwomen. They did not let us wear back our clothes until we were utterly humiliated.” [10]

KVM Monalisa, General Secretary, Telangana Transgender People’s Association

Their real-life experiences show the discrimination faced by these people in their day-to-day lives as many have dared to come forward and open up about the cruelty, humiliation, and torture they were subjected to in prison. One such story is of Kiran Gawli. Kiran spent 17 months in prison and was only one of the five transgender women among 2000 male prisoner (Bakshi 2021).

The CHRI report also highlighted that no uniform procedure or policy has been adopted with respect to the medical examination of transgender prisoners. Medical examinations, the way they are conducted and the outcome of such examinations also form a matter of violation of the fundamental rights of transgender prisoners, as these medical examinations also focus on determining the gender of an individual based on genitalia. In Indian prisons [for example, Karnataka (Roy 2017) and Telangana (Jose 2019)] it has been alleged that if a person has male genitalia, they are kept in the male section and if they have female genitalia then they are kept in the female section. The same thing happened with Kiran Gawli in Nagpur Central Prison in Maharashtra. Therefore it cannot be said conclusively that such a placement procedure is followed in only a handful of states. The contrary viewpoint has to be taken into consideration regarding the discrimination and marginalisation this community faces on a daily basis in Indian society.

The discrimination faced by a transgender prisoner can be made evident by the incident of a transman published by Project 39A in their criminal law blog [11].

“When asked, I told them I am a transman. I have gotten my upper body operation and am on a monthly dose of testosterone. I have facial hair, and my voice is that of a man. The lady doctor asked me to strip, and when I refused, two prison officials forcefully undressed me. Everyone kept staring at my private parts and made fun of the stitches on my chest. They made me wear women’s clothes, and I had no access to testosterone shots. I wanted to kill myself, after seeing my body change while I was in prison.”

Shakti (Name Changed), Transman

Nothing extreme is to be exercised or implemented to address the abovementioned issues. By just providing the equality and dignity that a human being deserves, we can address the vulnerability of being a transgender prisoner in Indian prisons and also address the social stigma of not providing an individual with the fundamental right of self-identification of their gender.

Infrastructure in prison

One of the most important guidelines mentioned in the advisory is regarding the prison infrastructure for transgender inmates. The advisory advocates that prisoners should be accommodated in suitable facilities according to the gender they identify themselves with [12]. A separate ward or enclosure may be provided by prison authorities to house transgender prisoners, which should be separate from the male and female wards.

In some prison facilities, transgender inmates are housed separately in a separate cells but they are not properly taken care of and, in most cases, are segregated and even neglected by the prison authorities. While they may house prisoners separately but the toilets and shower facilities for all must be common which defeats the whole purpose as transgender inmates could be subjected to cruelty and sexual violence in such vulnerable and common areas. There is no point in restricting the movement of such inmates in the name of security when they will be made to bathe and ablute in common shower facilities and use common bathrooms. Therefore, the privacy and dignity of transgender inmates are ultimately being violated in one way or another. If due care and caution is not exercised and the methods implemented are not shaped according to the changing needs of society.

Kiran Gawli was placed in a separate prison ward which was usually assigned to people suffering from infectious diseases like HIV, tuberculosis, etc. and were most often than not neglected by the prison authorities. 

Transgender prisoners should be housed separately but not segregated and a hospitable environment must be created in order for them to not feel neglected or even them being actually neglected. The prison authorities have to find a balance between protecting the right to privacy, dignity and bodily integrity of such prisoners and housing them in places where they might be separated and neglected.

Healthcare

A transgender prisoner should also have access to the same and necessary standards of healthcare as available to other prisoners without any arbitrary differentiation or discrimination. Cases of medical negligence are common in Indian prisons and especially in the case of people belonging to the transgender community.

A case of on Transgender prisoner detained in Bengaluru central prison known as Ishu had come into the limelight. Various news outlets wrote about this case of medical negligence, including Reuters [13]. Ishu had undergone breast augmentation surgery and had developed an infection in her silicon implants. The transgender inmate had informed the prison medical officer about her condition but was only provided with generic painkillers until her condition got worse and it was necessary, and her lawyers, who intervened on her behalf of her, were to be shifted to the hospital. There was a great lapse in the medical treatment. As highlighted by lawyer Ramya Jawahar Kudekallu of the Alternate Law Forum this type of medical negligence stems from the lack of general apathy for transgender inmates, the lack of preparedness, as well as the disregard and neglect in the proper treatment and care of such inmates in Indian prisons.

Funds are allocated by the Indian Government for the proper and equal treatment of all inmates, whether belonging to the binary or non-binary genders. Therefore, there must not be any lapse in the necessary provision of healthcare facilities for transgender prisoners as well.

Our Analysis of the situation

All the things mentioned above advocate for equal treatment of transgender prisoners in Indian prisons. The Supreme Court in the Navtej Singh Johar judgment [14] has enunciated the importance of equality and emphasised on embracing one's sexuality as an integral part of citizenship. The Apex court in the judgment stated "individual autonomy and liberty, equality for all sans discrimination of any kind, recognition of identity with dignity and privacy of human beings as the four cardinal corners of our constitution forming the concrete substratum of our fundamental rights”. However, from time to time the transgender community has still been eluded from the society at large as a result of “dogmatic social norms, prejudiced notions, parochial mindset, rigid stereotypes and bigoted perceptions". Every person has the right to equality, and mere discrimination on the basis of one's sexual preferences, features, etc., cannot be classified as a reasonable classification to discriminate or marginalise the inmates belonging to the transgender community.

The position of the Indian Judiciary is well established on the right to self-determination of gender, and therefore, transgender inmates should be recognised as a third gender or to choose and affiliate themselves with the gender they seem comfortable with. Justice K.S. Radhakrishnan, on behalf of the bench in the landmark judgment of National Legal Services Authority (NALSA) versus Union of India wrote that "Transgender persons' right to decide their self-identified gender is also upheld and the Centre and state governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.”  In reality the situation is very different and the Transgender (Protection of Rights) Act that came into force in 2019 with the Transgender (Protection of Rights) Rules [15]coming in force from 2020 approximately six years after the Ministry of Social Justice and Empowerment constituted a committee which advocated for a proper framework to be implemented in India for the protection of interests and rights of people belonging to the Transgender Community, a major of part of it being the right of self-determination of gender even after the Supreme Court highlighting the very problem in its NALSA judgment [16] emphasised upon the importance of the right of self-determination of one's gender as being integral to one's identity. The advisory issued by the Ministry of Home Affairs also provides for a suggestion with respect to providing a transgender inmate to have a right to a self-perceived gender identity. Therefore, it is evident that the proper implementation of the rules and standards that have been set from time to time have not been implemented with due caution. This can be linked with the social stigma and the marginalised status of the people belonging from the transgender community.

The prison official needs to adopt a more humane and humble approach during the admission and search procedures to not violate any individual's personal boundary.

The right to have a self-perceived gender is one of umpteen importance and the prison facilities have to facilitate, as mentioned in the advisory issued the process of providing the transgender inmate with an identity certificate under the provisions of the Transgender Act 2019 [17]. This process must be followed if a person is not yet registered on the government portal and therefore demands admission as a member of that community. Thus, rather than determining the gender of such inmates based on their biological or physical features, the officials need to follow a more cooperative procedure to not violate the fundamental rights and also the necessities of human decency to be followed when someone makes such a request. Such inmates should be provided with the option of participating in decisions regarding the place of detention appropriate according to their sexual and gender identity if they do not possess an identity certificate. 

The community is becoming more and more aware and woke about the rights of people belonging to the marginalised community, such as the transgender community but one needs to understand that just being aware is not enough if it is done as a publicity stunt or to just be a part of the "Me too" movement to go with whatever is trending. To make a difference would mean to change this perspective we have towards such people. And not considering the idea of a transgender person as taboo, and looking at it as a third gender. Training programmes and campaigns should be organised for the purpose of spreading awareness amongst the prison officials engaged in detention and prison facilities pertaining to the principles of equality, non-discrimination, human rights, and the fundamental rights available to each and every person so as to distort the hazy and orthodox social perspective people have developed with respect to people belonging to the transgender community.   

Principle 9 [18] of the Yogyakarta principles titled as the “Right to treatment with humanity while in detention" provided for the treatment of every person who has been deprived of their liberty to be humane and with respect for the inherent dignity of the human person. Principle 9 also talks about sexual orientation and gender being integral to each person's dignity. It is the duty of the state to ensure that the placement of inmates in detention avoids any further marginalisation of persons on the basis of sexual orientation or gender identity or subjecting them to risk of violence, ill-treatment or physical, mental or sexual abuse.  

Providing separate housing cells would be a big leap in providing security to transgender inmates. Although the practice is already implemented in some prisons the incidents of which have been discussed above but providing them with a proper habitable environment free from violence among the people belonging to the gender with which they identify themselves will help in reducing the distress and discrimination faced by such inmates on a rather frequent basis.