Transgender behind bars. The transgender pains of imprisonment in the light of the emerging and advancement of human rights protection for transgender prisoners within the Council of Europe context

Abstract

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.