Lost Identity: Transgender Persons Inside Indian Prisons

Prison reforms aim at protecting various vulnerable groups ­­– including ­women, foreign nationals, and people with disabilities – through additional protection and care within prisons. These groups include women, foreign nationals, and individuals with disabilities. However, the LGBTI+ community remains largely overlooked, the report notes. While such conversations are acquiring importance on the global level, the pace of this has been much slower in India, the report adds.

International standards can guide legislators and policy makers in ensuring that basic standards of conduct towards LGBTI+ individuals in detention are met. However, there are few documents that refer to the specific vulnerabilities of such individuals within prison systems. The Yogyakarta Principles and the Nelson Mandela Rules (also called United Nations Standard Minimum Rules for the Treatment of Prisoners) are some that do, the report states.

The Yogyakarta Principles underline human rights violations committed against individuals because of their actual or perceived sexual orientation or gender identity. Among the 38 Yogyakarta Principles, principles 7-10, 33 and 35 deal with the deprivation of liberty, and the trial and incarceration of LGBTI+ individuals.

Adopted by the UN General Assembly in 2015, the Nelson Mandela Rules lay down the minimum standards for the management of prison facilities and treatment of inmates. While the rules do not mention LGBTI+ communities explicitly, they underline the responsibility of prison administrations towards vulnerable groups.

Various international organisations such as Penal Reform International – based in the United Kingdom and Netherlands – and Association for the Prevention of Torture, Switzerland, have acknowledged the vulnerable position of the LGBTI+ community and the challenges they face within the criminal justice system. The report underlines how developments in this direction have been largely absent in India.

The report cites a study conducted by the National Human Rights Commission in 2018 on the status of human rights of transgender people in Uttar Pradesh and Delhi titled Study on Human Rights of Transgender as a Third Gender. As per this study, 99 per cent of the respondents reported encountering more than one instance of ‘social rejection’. Around 96 per cent had been denied ‘employment opportunities’ and 92 per cent were subjected to ‘economic exclusion’. The findings also highlighted harassment faced by the community from police officials.

The report highlights how the National Crime Records Bureau’s Prison Statistics India – 2018 continues to record the data of inmates within the binary of male and female. However, according to the data collected for this CHRI report, it was reported that nine states and union territories in India recorded details of transgender inmates separately.

Responses from some jails in Jharkhand, Kerala and Punjab indicated that transgender inmates in prisons were allotted wards as per the specifications of the court warrant. However, it is not sufficiently clear whether they are placed in male or female wards, or whether they have separate wards.

The report says that except for Karnataka, no state government in the country has undertaken awareness campaigns addressing legal recognition of third gender as an identity since 2014. The responses to the survey also revealed that no transgender person was recruited into the prison departments of any state or union territory between 2014 and 2019.

The report encourages state governments and their respective prison departments to rework existing rules and procedures to ensure that the specific needs of individuals belonging to the transgender community are considered. The report states that it is also imperative to recognize ‘third gender’ as a special category in official documentation. It advocates that allocation of wards in prisons should be redefined along the lines of ‘identity’ instead of ‘genitalia’.

Focus and Factoids by Meera Keshav.