The transgender persons lodged in different prisons of the world face a number of problems during their admission to and stay in the prisons, including discrimination, access to healthcare facilities, housing decisions, gender identification, self-harm, suicide, searching arrangements, harassment and depression.

There are 60 correctional homes in the state of West Bengal of India. Necessary steps have been initiated by the correctional home authorities to address these problems in the light of the advisory dated 10 January, 2022 issued by the Union Home Ministry, Government of India as also under the Transgender Persons (Protection of Rights) Act, 2019 and the Transgender Persons (Protection of Rights) Rules, 2020.

The condition of the transgender persons in the prisons can be improved by following these guidelines, rules and regulations and by improving drastically the infrastructural difficulties faced by the prisoners in the prisons and by imparting regular training to the prison officers, men and women on the rights and sensitivities of the transgender prisoners followed by the removal of negative feelings among the general prisoners against the transgender persons.

Introduction
Transgender persons are a vulnerable group in the prisons worldwide. A number of issues like discrimination, violence, humiliation, harassment, depression, unemployment, sexual assault, searching arrangements, access to healthcare, gender identification, housing decisions, suicide and other adverse conditions stare them in the face in the prisons and make them a susceptible and unique group of population to be managed by the prison officials. They also have to bear with stigmatization and victimization in the prisons.

Though the struggles faced by transgender prisoners have long been overlooked by the prison administration worldwide, recent developments point to some positive steps taken by the government and courts to improve the condition of such prisoners in jails.

Some studies aver that transgender prisoners cannot access gender-responsive healthcare, including adequate medical hormone therapy and other gender-affirming healthcare services in the prisons throughout the world. They also have to suffer harassment, abuse and humiliation from the prison staff and law enforcement personnel and fear retaliation for seeking redress. There is a lack of sensitization among the prison staff and correctional institutions regarding needs and identity of the transgender persons.

On the contrary, in the United Kingdom, some sex offenders claimed that they were transgenders as they believed it lowered risk and made them exempt from courses, and also in the hope that they would be placed in the female ward.

As defined by the Transgender Persons (Protection of Rights Act, 2019), a transgender person is any person whose gender does not match with the gender assigned to that person at birth or people who don�t identify themselves with the same gender at birth. People having socio-cultural identities as kinner, hijra, aravani and jogta, people who have undergone sex reassignment surgery, hormone therapy, laser therapy, people of different sexual preferences, trans-men, trans-women, and people with intersex variations and gender queer are also considered as transgender.

National and State Scenario

In India in the year 2021, there were 91 transgender persons out of a total prisoners� population of 5,54,034, 5,31,025 being males and 22,918 females. The transgender prisoners� figure being so small, there is a likelihood that their number is not being counted properly and they are not being kept in separate wards or enclosures.

Transgender persons constitute a very miniscule part of the prison population of West Bengal. Out of the total prisoners� population of 27490 in the month of July, 2023 in the correctional homes of West Bengal, only 19 were transgenders. There were 08 transgender prisoners in Jalpaiguri central correctional home, 04 in Balurghat central correctional home and 07 in Dumdum central correctional home. In rest of the 57 correctional homes, there was no transgender prisoner.

When transgender persons are admitted into correctional homes, it becomes difficult for the superintendents of the correctional homes to decide whether they should be kept in male or female ward. They have to take the help of the report of the doctor present in the correctional home to decide upon their gender and based on the doctor�s report a male or female ward is allotted to them. Sometimes the superintendents depend on the Intermediate Custody Warrants (ICW) sent from the court to find out their gender.

West Bengal Jail Code, the West Bengal Correctional Services Act, 1992 and The Prisons Act, 1894, over which the administration of prisoners in the correctional homes of West Bengal is based, are silent over the rights and safeguards to be provided to transgender persons in the prisons.

There is inadequate guidance on the protection of transgender persons in prisons even in Nelson Mandela Rules except in Rule 7 which states that certain information should be gathered on admission to prison, including �precise information enabling determination of his or her unique identity respecting his or her self-perceived gender�.

Similarly, Principle 9 of the Yogyakarta Principles directs authorities to ensure that �placement in detention avoids further marginalizing persons on the basis of sexual orientation or gender identity or subjecting them to violence�.

However, a judgment was passed by the Supreme Court of India in the case of Nalsa vs. Union of India leading to the enactment of Transgender Persons (Protection of Rights) Act, 2019 for the welfare of the transgender community and to treat them as a third gender in order to safeguard their rights under part-III of the constitution of India and other laws made by Parliament and the State Legislature.

An advisory dated 10 January, 2022 for dealing with transgender persons in prisons and correctional facilities was issued by the Ministry of Home Affairs, Government of India, to all the States and Union Territories in an effort t to prevent any discrimination against them.

The engagement of transgender persons as bonded labour (excluding compulsory government service for public purposes), denying them the use of public places, their removal from the household and village and their physical, sexual, verbal, emotional or economic use are recognized as offences under the Transgender Persons (Protection of Rights) Act, 2019, under which penalties varying sentence of six months and two years may be imposed by the court.

The Transgender Persons (Protection of Rights) Act, 2019 recognizes a transgender person as such and allows him/her to have a self-perceived gender identity. A transgender person may make an application to the District Magistrate for a certificate of identity including the gender as transgender. He/she may obtain a revised certificate if the individual undergoes surgery to change his/her gender either as a male or a female. The Act prohibits discrimination against the transgender person and gives them the rights of residence, employment, education and healthcare.

There is no separate or special infrastructure for them in prisons in West Bengal. They are generally kept in separate enclosures in the prisons, based on their genitalia. Their placement in the jail is premised on the report of medical examination conducted by the medical officer during admission of such prisoners.

A report of the transgender person is sought by the superintendent of the correctional home from the medical officer and if the person has female genitalia, then she is kept in female section and if the person has male genitalia, he is kept in male section. The gender of the transgender persons is also decided by the Intermediate Custody warrant (ICW) sent from the court to the correctional home.

If in the court documents it is written as son of �X� then the transgender person is considered as male and if it is written as daughter of �Y� then she is presumed as female. However, separate rooms/enclosures in both male section and female section of the correctional homes are usually provided to the transgender prisoners for their accommodation.

A large number of correctional homes throughout West Bengal do not have separate and sufficient accommodation as prescribed by the Transgender Persons (Protection of Rights) Act, 2019 and the Transgender Persons (Protection of Rights) Rules, 2020. However, prison authorities have kept separate room for housing transgender persons wherever they are available and proposal has been initiated by them to construct separate rooms for the transgender persons in the correctional homes where separate rooms are not available.

There is need for creating specific infrastructures in all correctional homes (especially in the central correctional homes) for the transgender persons as directed in the Transgender Persons (Protection of Rights) Act, 2019 and the Transgender Persons (Protection of Rights) Rules, 2020.The provision of separate cell/ward along with separate toilet for the transgenders in the correctional homes needs topmost priority.

Difficulties faced by Transgender Persons in Prisons

The problems faced by transgender persons in the prisons may be categorized as given below:

• Lack of training of the prison officers, men and women in dealing with transgender persons.
• Absence of medical officers in many correctional homes to help the prison authority in finding out the gender of the transgender person for allotment of male or female ward or enclosure according to his/her sex.
• No mental health facilities in many correctional homes.
• Transgender prisoners are subject to victimization and discrimination and prone to self-harm.
• Most of the transgender prisoners come from poor families and get rejected by them due to their sexual orientation and hence likely to suffer from depression.
• No arrangement for treatment of sexually transmitted diseases in correctional homes.
• Allotment of meager funds towards improvement of prisons� infrastructure.
• Inability of the transgender persons to mingle freely with other prisoners of their gender due to reservations of the other prisoners.
• Absence of separate accommodation with toilets for transgender persons in the correctional homes.
• Non-acceptance of transgender persons as their co-prisoners by the general prisoners of the correctional homes.
• Problem in getting medical attention in hospitals on being admitted by the prison authorities as the hospital authorities fail to decide in which ward the transgender person should be kept.
• Absence of separate toilets and bathing facilities for the transgender persons in the correctional homes.
• Lack of awareness in the general prisoners to accept transgender persons as a part of society.
• During searching they are asked whether they will prefer to be searched by male or female prison personnel and according to their choice their search is done by male or female staff of the correctional home.
• Absence of any transgender prison staff in the correctional home to understand their problems better.
• Problems faced by them during search in the correctional homes.

Requirements of Transgender Persons in Prisons

The following steps may be taken in order to ameliorate the condition of transgender prisoners in the correctional homes:

• Separate toilet should be arranged for the transgender persons in the �Visitors� Room� (Mulaqat Area).
• A Standard Operating Procedure (SOP) should be prepared for dealing with transgender persons in correctional homes.
• A national committee should be formed by the prison authorities to help transgender people in prisons and to ensure that good practice guide prison practices, procedure, and policies.
• The assistance of stakeholders and other experts on the distinct needs of transgender people should be welcomed.
• The national prison policies and standard operating procedures should be made consistent with the national and international guidelines on the treatment of transgender prisoners.
• Healthcare services, hormone therapy, gender-affirmative care, mental healthcare, and care relating to HIV, other STIs, TB, and other communicable and non-communicable diseases should be organized following Yogyakarta Principles.
• Transgender people should be offered comprehensive health screening, including HIV testing and mental health screening upon admission into prison.
• Regular training on sexual orientation, gender identity, sex characteristics, and the importance of hormone therapy should be imparted to prison staff.
• To assess the psychological health of transgender prisoners, mental health specialists should be available to them.
• Skill development training should be given to transgender people in prisons to help them earn their livelihood upon release from the prison.
• A more humane approach should be adopted by the prison officials during admission and search procedure in respect of a transgender person without violating their personal boundary.
• While keeping them in a separate enclosure, it should be ensured that they don�t feel isolated, depressed, or discriminated against.
• Free and efficient legal aid should be provided to them to help them get released from the prison.
• They should be allowed to participate in the special events organized occasionally in prisons.
• During searching, they should be asked whether they will prefer to be searched by male or female prison personnel, and according to their choice, their search should be done by male or female staff of the correctional home.
• Any violence or sexual offense against them either by the prison staff or by the fellow prisoners should be strictly dealt with.

Conclusion
Though there are a very few numbers of transgender persons in the correctional homes of West Bengal, after the enactment of Transgender Persons (Protection of Rights) Act, 2019 and the Transgender Persons (Protection of Rights) Rules, 2020 and the advisory issued by the Union Home Ministry dated 10 January, 2022, for dealing with transgender persons in prisons and correctional facilities in an effort to prevent discrimination against them, special attention has been given towards construction and allotment of separate accommodation and toilet for the transgender persons in the correctional homes. The training of prisons� personnel has started on the rights of transgender prisoners as per rules, regulations and court orders.

The safety and security of the transgender prisoners in the correctional homes of West Bengal are well taken care of except one or two stary incidents. In one such case, a United States national transgender was molested by one prison staff of Dumdum central correctional home and over the complaint of the said transgender person, after an enquiry, the staff was transferred out from the said correctional home to a different location and disciplinary action was also initiated against him.

References:

1. A �Double Punishment�: Placement and protection of transgender people in prison, Victoria Patrickson, 30th September 2020, Penal Reform International
2. The Indian Prisons and The Search for Equality: The Problems Faced by Transgender Inmates, Harsh mahaseth & Sparsh Jain, EPW Engage
3. UNODC, Technical Brief: Transgender People And Hiv In Prisons And Other Closed Settings
4. The Indian Prisons and The Search for Equality: The Problems Faced by Transgender Inmates, Harsh Mahaseth & Sparsh Jain, EPW Engage
5. Report of National Crime Record Bureau, New Delhi
6. Some trans prisoners are faking it�, MoJ study finds, Insidetime, 10th July 2023, insidetime.org
7. Reports of the Superintendents of Sixty (60) Correctional Homes of West Bengal

Written By: Md. Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565