Double jeopardy

Protecting the rights of LGBTI prison inmates

Of the 370,000 held in the Thai prison system, 4,500 of them are transgender people.

While men and women inmates face their own challenges within their compound, LGBTI-identified people face even greater problems behind bars. Transgender people, especially, are stuck in a limbo of correctional facilities that operate on a binary system that only recognises people's sex at birth, not their varying gender identities.

At the recent National Workshop to Raise Awareness on Sexual Orientation, Gender Identity and Gender Expression (Sogie) in Closed Settings, panellists expressed concern that the 4,500 transgender -- both male-to-female and female-to-male -- inmates face a certain stigma and discrimination from both fellow inmates and prison personnel.

The workshop -- organised by the Department of Corrections, the Inspire Project of HRH Princess Bajrakitiyabha, the Ministry of Justice, and United Nations Development Programme (UNDP) -- aimed to educate participants on the topic of Sogie in closed settings, as well as challenges and obstacles faced by transgender inmates within the prison system. It was attended by over 150 participants from the Department of Corrections, prison wardens, civil-society organisations, transgender groups and more.

As a community, LGBTI people remain vulnerable to hate crime, harassment and even murder. Transgender people tend to face more conflict than other groups, as their gender identity doesn't match the legal gender on their official documents. Within prison, some problems that have manifested from this include maltreatment, with examples such as transgender women being searched by male staff, getting refused hormone treatment and more.

From the assessment report conducted by UNDP in select Thai prisons, as presented by Suparnee Pongruengphant -- national officer in Governance, Human Rights and LGBTI of Being LGBTI in Asia Programme at UNDP -- it was found that transgender inmates now live in a compound based on their sex at birth, though some reside in separate sleeping quarters to prevent sexual harassment from fellow inmates.

"While these transgender inmates were allowed to express their gender -- and many also chose to do so -- there are many others who chose not to for fear of their safety, of the treatment from both wardens and fellow inmates, verbally and physically," said Suparnee, adding that some transgender women inmates resort to finding a "boyfriend" inside prison as a way to protect themselves from sexual harassment.

The inmates also reported the lack of access to hormone therapy (mostly in transgender women) and chest binders (for tom and transgender men inmates). Quitting hormone therapy can cause side effects on their health such as weight gain, mood swings, a change in figure and hair loss. For transgender men, having no chest binder can cause embarrassment and loss of confidence.

Treatment also varies among male-to-female and female-to-male transgender people, as transgender women tend to be better accepted than transgender men, who are often viewed as troublemakers and often subjected to verbal harassment for their gender identity.

From the report, it was suggested that prison personnel should undergo some form of human-rights and gender-diversity training, and that transgender inmates should be given access to hormonal treatment, care for HIV/Aids, reproductive healthcare items (such as condoms and lubricant) and a chest binder, according to their needs.

Other guest speakers and participants also reported situations where transgender inmates are put into solitary confinement for lack of better protective measure from harassment, even though it was originally used as a form of punishment. There were also mentions of violence, gang rape and prostitution undergone by LGBTI prisoners.

Nicholas Booth -- programme adviser in Governance, Conflict Prevention, Access to Justice and Human Rights at UNDP -- pointed to the Yogyakarta Principles, which were developed by human-rights experts in 2006. Its Principle 9 states that prisoners are entitled to treatment with humanity and respect, and that Sogie is integral to their dignity. Their detention shouldn't further marginalise them, and access to medical care (reproductive-health and hormonal therapy included) should be provided. Additionally, prisoners should be able to participate in deciding where they are placed (appropriate to their gender).

These principles, while not legally binding, draw from international human-rights laws that addresses Sogie issues.

"We're not talking about special rights. We're talking about equal rights," insisted Booth.

Sharing his view on the Thai prison situation was Police Col Narat Sawatanan, director-general at the Department of Corrections, who readily acknowledged that everyone is indeed born equal, and that Sogie matters to the dignity of human beings.

At the same time, he explained that everyone also has to look at the reality and the issues that each correctional facility is facing, such as prison overcrowding, failure in rehabilitation and high recidivism. The staff already have their hands quite full.

Another obstacle that prohibits the improvement and change in practices and treatment toward LGBTI people is the Thai law itself, which only considers sex at birth and not gender identity. The current Correction Act also segregates inmates based on the same binary, gender description.

"As long as the law overall doesn't recognise LGBTI people's gender status, there'll be limitations," said Narat, adding that anyone still going by "Mister" -- regardless of any transition procedures or surgeries performed on their body -- will continue to be regarded as a male prisoner in practice.

While he willingly took suggestions from academics and institutions, he said that there also has to be a balance in treatment between transgender -- a minority in prison -- and non-transgender inmates, and that the staff can't honour and care for one more than they do the other, or it could disrupt prison security and order.

"Of course, we take care that they're not being harassed," said Narat. "The Department of Corrections is not the culprit here. It's not that we don't want to do things for them or that we take away benefits of LGBTI people. Non-transgender people are stripped of these benefits too."

Pitikan Sithidej, director-general at the Department of Rights and Liberties Protection, Ministry of Justice, said that existing Thai law only acknowledges two genders, while other parts of the world have already recognised that there are more. LGBTI people work and pay taxes just like everyone else, but continue to face discrimination in different aspects in life.

"People's gender identity doesn't disappear just because they go behind bars. We have to separate punishment from their identity," she said.

Pitikan referred to the Bangkok Rules -- a set of standards and guidelines to protect the rights of women prisoners -- which was introduced in 2010. The rules were initiated by the Thai government, with HRH Princess Bajrakitiyabha playing a vital role in their development.

"We already have a great basis for human rights. With the Bangkok Rules, too, we're leading in many ways. Shouldn't this be another? We can take this opportunity to treat all our inmates with human rights."