LEGITIMATING TRANSPHOBIA

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 study 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. There is limited global data on the 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 focusses 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. Transgender prisoners experience an 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 operating 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. This study 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 prisons. Rights assurances centre on the principles of equality, dignity, freedom of expression, dignified detention and the prohibition of inhumane treatment or punishment.


 
 
 
 Indonesia is a country that is famous for its multiculturalism, one of which is religion. Consequently, in living their lives, Indonesian people are faced with differences in various things, ranging from culture, way of life and interactions between individuals. The concern of the government and other components of the nation is the issue of inter-religious relations. One of the problems in inter-religious relations is the issue of mixed marriages (inter-religious marriages), which in this article are referred to as “interfaith marriages”. The condition of the pluralistic Indonesian society makes the association in society wider and more diverse. This has resulted in a more dynamic shift in religious values ​​than what happened in the past. In fact, interfaith marriages in Indonesia are not justified based on positive national law that applies in the territory of Indonesia. It can be concluded that if the State legalizes interfaith marriages in Indonesia, the State is tantamount to violating the existing religious laws in Indonesia, and violating Article 29 of the 1945 Constitution which guarantees every citizen to embrace religion and worship according to their religion and belief, while Each religion has different procedures for marriage or worship. The view of human rights in Indonesia should refer more to the human rights arrangements contained in the 1945 Constitution, not to the UDHR which we ourselves do not know who made it and even what the agenda is for a country that is still very religious. Human rights in Indonesia, not secular human rights, which separate religion from the state, which legalize all means in the name of "human rights", this clearly contradicts the first principle of Pancasila, and this does not enter into the identity of the Indonesian nation. In this article, interfaith marriage will also be studied from the perspective of criminal law regarding its legality.
 
 
 

South Asia abounds with diverse gender identities that vary regionally based on religion, language, and cultural practices. Transgender rights activists have successfully deployed human rights rhetoric in order to obtain legal recognition of diverse gender identities from courts. However, the collapsing of these diverse identities and practices into a single category, under the transgender umbrella, by governments and judiciaries has created complex mechanisms for legal recognition of transgender persons. Simultaneously, international human rights principles are being invoked to win victories at the national level, which in turn offers insights into the dynamic interplay between law, activism, and human rights. In this article, we outline the constraints and opportunities presented by the changes in legal recognition of diverse gender identities across South Asia. We argue that the uses of international human rights statutes in national-level legal and judicial deliberations about recognizing transgender persons across South Asia offer limited opportunities, and mostly delimit access to formal citizenship, the very objective these laws seek to achieve. Simultaneously, this moment of wrestling with the limits of law, while continuing to demand full recognition from individual states, has given rise to cross-border mobilizations of a vibrant transgender rights movement. Such mobilizations reveal how diverse transgender activists are reinterpreting human rights principles in order to create coalitional multi-issue trans/justice movements throughout South Asia.

In this entry, I discuss the moral rights of transgender persons – that is, of those persons who do not identify with the gender assigned to them at birth, or who otherwise cross conventional gender boundaries. So‐called “transgender rights” are not applicable only to transgender persons. They are conceived of as human rights. The reason they can be called “transgender rights” is because a historical movement – the transgender movement – has campaigned for them over the past few decades, giving them a distinct, hitherto neglected, place within rights theory and law. I analyze a selection of human rights documents to determine the content of transgender rights. Principal among these are what I call the “core gender rights”: the right to self‐defined gender identity, and the right to gender expression. I present some ethical justifications for the right to respect for self‐defined gender identity. Next, I discuss the ethical justification of the right to gender expression, and consider specific gender expressions, such as the right to access gendered spaces and the right to the modification of one's sex characteristics. I conclude with some remarks concerning the goals of transgender rights discourse.

Drawing on a collaborative ethnographic study of the 2016 International Union for the Conservation of Nature World Conservation Congress (WCC), we analyze how Indigenous peoples and local community (IPLC) rights advocates have used a rights-based approach (RBA) to advance long-standing struggles to secure local communities' land and resource rights and advance governing authority in biodiversity conservation. The RBA has allowed IPLC advocates to draw legitimacy from the United Nations system—from its declarations to its special rapporteurs—and to build transnational strategic alliances in ways they could not with participatory discourses. Using it, they have brought attention to biodiversity as a basic human right and to the struggle to use, access, and own it as a human rights struggle. In this article, we show how the 2016 WCC provided a platform for building and reinforcing these alliances, advancing diverse procedural and substantive rights, redefining key principles and standards for a rights-based conservation approach, and leveraging international support for enforcement mechanisms on-the-ground. We argue that, as advocates staked out physical and discursive space at the venue, they secured the authority to shape conservation politics, shifting the terrain of struggle between strict conservationists and community activists and creating new conditions of possibility for advancing the human rights agenda in international conservation politics. Nonetheless, while RBAs have been politically successful at reconfiguring global discourse, numerous obstacles remain in translating that progress to secure human rights to resources "on the ground", and it is vital that the international conservation community finance the implementation of RBA in specific locales, demand that nation states create monitoring and grievance systems, and decolonize the ways in which they interact with IPLCs. Finally, we reflect on the value of the Collaborative Event Ethnography methodology, with its emphasis on capturing the mundane, meaningful and processual aspects of policymaking, in illuminating the on-going labor entailed in bringing together and aligning the disparate elements in dynamic assemblages.Keywords: Human rights, global conservation governance, collaborative event ethnography, Indigenous peoples

In the legal imagination, transgender persons are not subjects; rather, they are an abject class. In general, transgender rights consistently lag behind gay and lesbian rights. This stems from an a...

The article presents a general theoretical description of the legal mechanism for the implementation of human rights.
 It is emphasized that the important role in implementing human rights is played by the state, as well as other institutions of society - religious organizations, public organizations, the media, etc., as well as specific people.
 It is stated that the social mechanism for implementing human rights includes the following mechanisms: 1) the international mechanism for ensuring human rights; 2) legal (domestic) mechanism for ensuring human rights; 3) the mechanism of ensuring human rights through other social means (moral, religious, etc.).
 The concept of the legal mechanism for implementation of human rights as a system of effective legal means (guarantees) for the protection and defense of human rights enshrined in regulations and other sources of law, as well as activities to form legal awareness of the subjects.
 The main problems in the field of the legal implementation of human rights in Ukraine are outlined.
 The main directions of improving the mechanism of the legal implementation of human rights in Ukraine are formulated:
 - enshrining in the Constitution of Ukraine special sections devoted to: 1) guarantees of fundamental human and civil rights and freedoms; 2) the rights of the child and legal guarantees for their provision;
 - bringing the provisions of the laws of Ukraine on human rights in line with international human rights standards;
 - adopting laws of Ukraine, where there are gaps in the field of regulation of the implementation of certain human rights;
 - improving the laws of Ukraine on human rights so that they express the will of the majority or the entire population;
 - restricting human rights only in cases specified by law, taking into account the need and expediency for society;
 - increasing the level of mutual responsibility of the individual and the state;
 - improving procedural and legal mechanisms for implementing human rights;
 - increasing the role of the judiciary of Ukraine as the most reliable and effective legal guarantee of human rights protection;
 - more effective application by the courts of Ukraine during the consideration of cases of the Convention for the Protection of Human Rights and Fundamental Freedoms and the practice of the European Court of Human Rights as a source of law;
 - raising the level of legal awareness of officials and other participants in public and state life;
 - more effective legal implementation of the rights of certain categories of people who especially need it in modern conditions (children; socially vulnerable persons, women, etc.);
 - more effective legal implementation, first of all, of vital human rights: the right to life, the right to social protection; the right to an adequate standard of living for oneself and one's family; the right to health care, medical assistance; the right to a safe environment for life and health.

Transgender prisoners in Indian prisons experience a singular intersection of structural abandonment, institutionalized bias, and legal erasure. Even after judicial acknowledgment of transgender rights and the passage of the Transgender Persons (Protection of Rights) Act, 2019, the carceral system remains entrenched in strict, binary structures that do not allow for gender diversity. The following paper critically explores the lived experiences of transgender prisoners in India, revealing legal protection gaps, custodial policies, and prison facilities. It questions matters such as arbitrary assignment to housing, refusal of gender-affirming treatment, and humiliating searches and admissions, which are all contrary to constitutional safeguards of dignity and equality. The analysis is based on Indian law, international human rights instruments—specifically the Yogyakarta Principles and Nelson Mandela Rules—and government guidelines, such as the Ministry of Home Affairs' new guidelines for the handling of transgender prisoners. The research argues that current legal and administrative structures are inadequate, frequently perpetuating, instead of alleviating, the marginalization of transgender individuals in detention. It recommends structural reform with a focus on gender self-identification, comprehensive healthcare, safe shelter, sensitization of prison officials, and enforceable mechanisms of oversight. The paper ends by concluding that unless India's prison system evolves beyond tokenistic acknowledgment towards real inclusion and protection of transgender persons, the constitutional promise of dignity and equality will continue to be unfulfilled.

Prison systems are traditionally binary systems, as prisoners are either placed in a male or a female prison facility. In the literature, transgender prisoners are identified as a vulnerable group, due to the heightened risk of human rights violations such as violence, abuse, sexual exploitation, stigma and discrimination. Maycock, building upon the theory on the ‘pains of imprisonment’ by Sykes, has identified specific pains of imprisonment to consider the particular deprivations or frustrations that transgender people experience within prison settings. In this article, the central question is whether the human rights framework as developed within the Council of Europe has put forward human rights norms for the placement and treatment of transgender prisoners to deal with these specific pains of imprisonment and to provide protection to transgender prisoners against additional suffering in prison. To ensure safe and humane prison conditions for the vulnerable group of transgender prisoners adequate human rights protection is of the utmost importance. Combining the criminological theory of the transgender pains of imprisonment with the human rights based approach this article makes a novel contribution to the study of transgender people in custody within the Council of Europe context. This approach will shed light on this often overlooked group of vulnerable persons in European prisons. The findings are not only based on theory, but also illuminate current practices in the Council of Europe Member States, as Maycock’s theory of the transgender pains of imprisonment is based on interviews with 13 transgender people in custody in the Scottish penal context and the country reports by the CPT provide evidence of penal policies and practices on the placement and treatment of transgender prisoners in 10 different Council of Europe Member States.

The increasing incidence of rape and sexual offences in Nigeria is not only alarming but disheartening. Several efforts have made by the federal government of Nigeria and various state governments to address the social menace, like opening sex offenders’ register, practice of naming and shaming, imposing life sentences for convicted offenders, among other steps. In all these however, the heinous crime of rape and sexual offences have not been curtailed in the country, rather it is on the increase. Kaduna state government of Nigeria, in an attempt to tackle the crime, proceeded to amend the state’s Penal Code and prescribed castration as appropriate punishment for convicted perpetrators of rape. As commendable as this may be, how effective can it serve as deterrence and does the punishment of castration fall within the goals of penology? More importantly, is castration tantamount to an abuse of reproductive health rights of the convict? These are the issues addressed in this article. The aim of this article is therefore to examine castration as punishment for the offence of rape from the perspective of criminal law and human rights. The findings of the research revealed that castration as punishment for the offence of rape in Kaduna state is a way too far, and may amount to retaliation rather than deterrence. The research concludes that cutting an aching head is not the solution to the headache, hence there are other ways to curb the rampant rape of rape than a punishment that violates reproductive health rights of the convict. Keywords : punishment, castration, rape, perpetrators, reproductive health DOI: 10.7176/JLPG/110-01 Publication date: June 30 th 2021

Sexual offences pose severe violations of human rights that necessitate criminal law intervention in every democratic society. Using a holistic and integrated approach, this book examines sexual offenses through criminal law and criminal procedure within different jurisdictions. Impunity or lenient punishment enjoyed by perpetrators appears as a fundamental concern and contribute to low(er) reporting rates. Attrition, from the perspective of criminal law, is not only caused by issues in criminal procedure, like a lack of victim support or insufficient evidence, but is primarily linked to the definition of sexual offences which is hugely influenced by society, culture, and political power. Stereotypes that are deeply rooted in society in the form of common myths such as: victim of sexual offences are always female(s), or sexual offences take place outside of marriage, or that the victim has an obligation to manifest a resistance, or a woman accepting a gift by a man shows she consented to sexual acts and many others that are impediment to combatting sexual violence. These myths are not just maintained by society, but they also affect the victim’s decision to seek justice, as well as the judiciary’s approach to victims and the police’s attitudes towards victims. Using cases and legislation from Croatia, Greece, Italy, North Macedonia, Romania, Serbia, and Turkey, and comparing them to United Kingdom, Germany, the Netherlands and the United States, this book presents peculiarities stemming from society, culture, politics, historical facts and even religion, along with solutions to the global problems of sexual offenses. This book is of interest to scholars studying criminal justice, legal studies, sociology, and cultural studies

Reviewed by: Development and Human Rights: Rhetoric and Reality in India by Joel Oestreich Dan Chong (bio) Joel Oestreich, Development and Human Rights: Rhetoric and Reality in India (Oxford University Press, 2017) ISBN 9780190637347, 224pages. Nongovernmental and multilateral development agencies have increasingly adopted a rights-based approach (RBA) to development over the past two decades. Has the RBA resulted in concrete changes in these agencies’ strategies and tactics in the field? How do these organizations, which have traditionally been perceived as doing “technical” and politically neutral work, navigate the politics of human rights that are inherent in the RBA? In his thoroughly researched, theoretically grounded, and concisely written book, Joel Oestreich analyzes the work of United Nations specialized agencies in India to provide insight into these questions.1 Oestreich examines how several UN development agencies—including the UN Development Programme (UNDP), the UN Children’s Fund (UNICEF), the UN Population Fund (UNFPA), UN Women, and the World Bank—have interpreted and implemented the RBA in their work in India. He finds that there is wide variation both within and among [End Page 233] agencies in their commitment to the RBA and their translation of the RBA into practice. Despite this inconsistency, staff members at UN specialized agencies do increasingly view their mission through the lens of promoting human rights. Furthermore, this commitment to the RBA is not “mere rhetoric,” in the author’s words; it has led UN agencies to make real changes in their work in India. It would be meaningless for UN agencies simply to recast their development programming as the fulfillment of economic and social rights, because the provision of goods and services is what these agencies have always done. However, organizations like the UNDP and UNICEF are beginning to address politically sensitive issues—namely, the enforcement of civil and political rights— that require some confrontation with the Indian government. This is important for Oestreich because, as these agencies encounter resistance from national and local authorities, it demonstrates that their commitment to the RBA is real. Oestreich focuses on five specific civil and political rights that UN agencies have promoted in India: the decentralization of political power; nondiscrimination in the provision of public services; access to justice for marginalized populations; the right to information; and women’s rights.2 As they have begun to actively promote these rights, UN staff members have been forced to adopt new strategies for dealing with the political resistance that they encounter.3 For example, UN staff often “camouflage” their rights-based activities by reframing them in technical, non-controversial terms such as “building local capacity.” They use data on human rights violations from the Indian government or impartial third parties in order to bolster credibility and then promote public education through mass media. They use the good offices of the United Nations to bring conflicting parties together to resolve conflicts, and they tend to advocate for “soft” approaches to accountability, such as grassroots education and local empowerment, rather than “hard” mechanisms of legal enforcement that would invite confrontation.4 The promotion of civil and political rights by UN specialized agencies in India leads to several key conclusions in the book, which have important implications for development and human rights practice, as well as our understanding of the role of the UN in international politics. First, the RBA is an inherently political process, insofar as it challenges structures of power and involves conflicting interests and values. This is important to recognize, because both international development and human rights have frequently been cast by theorists and practitioners as technical, politically neutral activities. Development has been perceived as a nonpolitical process whereby economists and technical experts efficiently maximize growth for the benefit of everyone. The protection of human rights has been perceived as being led by independent jurists advancing nonpolitical legal standards that can be enforced equally on everyone. Neither of these perceptions is entirely accurate. Development and human rights often involve utility trade-offs, political struggles between unequal groups, and inherent conflicts over values. The RBA recognizes that both development and human rights operate in the political realm and requires the empowerment of [End Page 234] marginalized populations to advocate for their own...

The conditional death penalty in Indonesia is imposed using the principle of balance as a limit of tolerance and legitimacy which originates from the Pancasila Ideology, the 1945 Constitution of the Republic of Indonesia, Human Rights and Human Obligations as well as general legal principles recognized by civilized nations. For this reason, it is necessary to carry out more in-depth research regarding the conditional death penalty from the perspective of criminal law and human rights. The research method used is a normative legal method, namely in the form of library research using a statutory approach and a conceptual approach. The aim of the research is to find out how the concept of conditional death penalty is in view of criminal law and human rights. The results of this research are that the conditional death penalty which will later apply in Indonesia with the existence of the Criminal Code has taken a middle path or what is called the Indonesian way between retentionist and abolitionist groups which is very appropriate. Philosophical and sociological interpretation, especially of article 28 A and article 28 J of the 1945 Constitution of the Republic of Indonesia, where these two articles are certainly not intended to protect perpetrators of criminal acts that have endangered and reduced the right to life of other people, society and other individuals who are victims the criminal act. The conclusion is that the conditional death penalty which has very strict procedures for imposing it is regulated in the criminal law (KUHP) does not conflict with human rights because it only exists de jure and does not exist de facto.

INTRODUCTION With Chelsea Manning's case making headlines (1) and the hit television show Orange Is the New Black highlighting the struggles of a trans woman in prison, (2) the public is slowly becoming aware of the complex issues facing transgender prisoners. Although it is difficult to determine the precise size of this population, (3) a 2009 study by Brown and McDuffie estimates that approximately 750 prisoners in the United States identify as transgender. (4) This is a relatively small portion of the U.S. prison population, (5) but it represents a sizable portion of America's transgender population. Nearly one in six transgender Americans--and almost half of the African American transgender population--has been incarcerated in a state or federal prison. (6) Although the issues and concerns of this population have gained more attention in legal scholarship, academia, public policy, and social discourse in recent years, many issues are still largely unresolved for transgender inmates, including their access to medical care. Transgender individuals have struggled to gain access to comprehensive medical care for decades, and this difficulty is only exaggerated by the confining and often life-threatening conditions of prison. (7) Prison officials routinely prevent transgender prisoners from receiving access to transition-related health care such as hormone therapy or sex-reassignment surgery. (8) Given the history of incarceration in the United States, this issue largely affects those who are multiply-marginalized, (9) not only by their gender identity but often also based on their race and socioeconomic status. (10) The dominant legal argument used to secure medical treatment for transgender prisoners is rooted in the Eighth Amendment's language regarding cruel and unusual punishments. (11) Specifically, legal advocates have argued that gender dysphoria--the state of distress brought on by a disconnect between one's gender identity and biological sex--constitutes a medical (12) and therefore cannot be deliberately ignored by prison staff. Although gender dysphoria has been found to be a serious medical need in some cases, there is no unanimous agreement among courts on this issue, and the United States Supreme Court has not addressed the question. While the progress some courts have displayed in finding that gender dysphoria constitutes a serious medical need is encouraging, there is a serious flaw in the analysis that many of these courts apply. Specifically, in the vast majority of cases in which a court has found gender dysphoria to constitute a serious medical need, the plaintiff has resorted to extreme and incredibly dangerous actions of self-remedy--attempted suicide and/or genital self-mutilation. (13) There is simply no reason that a prisoner should have to reach this level of physical and psychological trauma before a court will categorize his or her (14) condition as serious enough to warrant treatment. While the case law around this issue certainly does not state that gender dysphoria only meets the standard of medical upon the attempt of these acts of self-harm, the case history strongly suggests that these incidents play a critical role in the courts' findings. (15) In fact, few cases that are brought on Eighth Amendment grounds lack mention of attempted suicide or genital mutilation. (16) This pattern poses a great harm to the transgender prison population and minimizes--if not fully disregards--the serious nature of gender dysphoria in and of itself. Furthermore, framing this argument within the context of medical need necessarily pathologizes the transgender community by describing non-conforming gender identity as an illness, and creates a difficult tension between securing access to treatment and advocating for the acceptance of transgender individuals and their gender identity. Part I of this Note will provide a background on gender dysphoria and will introduce the concept of prison as a uniquely and problematically gendered space. …

PurposeWith a rapidly growing population of older adults with chronic illness in US prisons, the number of people who die while incarcerated is increasing. Support for patients’ medical decision-making is a cornerstone of quality care for people at the end of life (EOL). This study aims to identify, describe, and analyze existing policies regarding EOL decision-making in U.S. Departments of Corrections.Design/methodology/approachThis study performed an iterative content analysis on all available EOL decision-making policies in US state departments of corrections and the Federal Bureau of Prisons.FindingsThis study collected and reviewed available policies from 37 of 51 prison systems (73%). Some areas of commonality included the importance of establishing health-care proxies and how to transfer EOL decision documents, although policies differed in terms of which patients can complete advance care planning documents, and who can serve as their surrogate decision-makers.Practical implicationsMany prison systems have an opportunity to enhance their patient medical decision-making policies to bring them in line with community standard quality of care. In addition, this study was unable to locate policies regarding patient decision-making at the EOL in one quarter of US prison systems, suggesting there may be quality-of-care challenges around formalized approaches to documenting patient medical wishes in some of those prison systems.Originality/valueTo the best of the authors’ knowledge, this is the first content analysis of EOL decision-making policies in US prison systems.