From Medical Examination to Ward Allotment: The Hidden Struggles of Transgender Inmates in the Indian Prison System

 

 

In the labyrinth of India’s prison system, a group remains largely invisible, their struggles unheard and their rights overlooked. They are the transgender prisoners, individuals whose gender identity does not align with the gender assigned to them at birth. Prisoners from the lesbian, gay, bisexual, transgender, and intersex (LGBTQ+) populations are included in this group.

Sexual minorities, particularly transgender individuals, face a challenging environment in our jails. Despite their visibility in public places, where they are criminalized and closely monitored, they remain largely overlooked in the policies, procedures, practices, and infrastructure that govern prison administration.

Transgender prisoners, especially those transitioning from male to female, are at a heightened risk of sexual and physical abuse from other inmates and prison officials. They may also endure violence, misgendering, medical neglect, and denial of legal aid. These challenges underscore the urgent need for inclusive and protective measures within our prison system. According to the data, transgender people are nearly ten times more likely to be sexually assaulted than the general prison population.

In January 2022, the Ministry of Home Affairs issued an advisory to all states and union territories, urging them to abstain from discrimination against transgender individuals in jails and other correctional facilities. This directive came as part of India’s ongoing efforts to recognize and uphold transgender rights. Notable milestones in this journey include the landmark NALSA vs Union of India case and the enactment of the Transgender Persons (Protection of Rights) Act of 2019, which officially came into effect on January 10, 2020. Despite these progressive steps, the plight of transgender prisoners remains a pressing issue.

Some claim that it is challenging to address these issues due to the paucity of uniform data on transgender inmates. Others contend that sexual orientation and gender identity are essential components of an individual's dignity and that prison administration needs to recognize the rights of transgender inmates. There is a lot of discussion on this topic on a global scale. However, similar discourse in India concerning LGBTQ+ communities and prisons is still evolving.

The purpose of this writing is to shed light on unique challenges encountered by transgender inmates in India, from the time of their admission to the day-to-day struggles they endure while incarcerated. It will explore the nuances of the medical examination, placement process, and search operation, all of which frequently jeopardize these people's privacy and dignity. It will also draw attention to the shortcomings in execution and policy that increase their susceptibility.

Currently how many transgender individuals are there in Indian jails?,

The exact number of transgender individuals currently incarcerated in Indian jails is not officially known. A study titled "Lost Identity: Transgender Persons in Indian Prisons" found that between May 2019 and April 2020, 214 transgender inmates were housed in various Indian jails. However, according to the National Records Bureau, there are currently 70 transsexual inmates in Indian prisons.

Tihar Jail, the nation's largest prison facility, houses approximately 8–10 transsexual inmates. Transmen are kept in male jails and transwomen in female prisons, in accordance with their self-identified gender. This practice is a progressive step towards recognizing and upholding the rights of transgender inmates within the criminal justice system.

During the study period, Uttar Pradesh (47) and Telangana (40) had the highest number of transgender inmates, followed by Odisha (20), Karnataka, and Madhya Pradesh (18 each). However, the actual number could be much higher. Only nine states, including Karnataka, maintain separate data on transgender prisoners. The report by CHRI, 'Lost Identity: Transgender Persons Inside Indian Prisons', states that prisons primarily cater to male populations and fail to acknowledge the vulnerabilities of transgender prisoners.

Information on transgender prisoners has not been provided by all jails in Uttar Pradesh. Only ten states, including Karnataka, Andhra Pradesh, Telangana, Gujarat, Maharashtra, and Rajasthan, segregate transgender inmates from male and female inmates. Some jails in Tamil Nadu and Uttar Pradesh follow similar practices, while other states segregate by confining them in separate cells, isolation wards, or hospitals.

Currently, some states have begun to recognize the identities of transgender inmates and ensure their rights are not compromised. For instance, separate wards for transgender persons, not close to male or female wards, are being created.

However, significant obstacles hinder the collection of data on the transgender community, particularly those incarcerated. Factors such as underreporting, societal stigma, and a lack of legal recognition make it challenging to obtain comprehensive and current statistics on this subject.

From medical examination to placement within prison, transgender inmates encounter many challenges, 

Transgender prisoners in India face numerous challenges, many of which stem from societal stigma and a lack of legal recognition. Despite the Transgender Persons (Protection of Rights) Act of 2019, transgender individuals often remain invisible in the laws, rules, and practices that govern prison management, increasing their vulnerability within the prison system. 

Indeed, the entry of transgender individuals into the prison environment marks the beginning of a series of challenges. The admissions process consists of three parts: the search method, medical evaluation, and placement within the prison.

The aim of a search operation is to prevent the introduction of restricted contraband or other prohibited items into Indian prisons. However, it is not intended to determine a prisoner's sex. According to the rules, the search should be conducted by a medical expert or a person of the individual's preferred gender, and it should not aim to determine the individual's sex. Respecting an individual's privacy and dignity during the search is crucial. If necessary, stripping, often a crucial part of the search process, must be done in a private or separate area.

Advocacy has been made for the addition of a "transgender" column to the jail admissions record, alongside the categories for male and female inmates. This would acknowledge the identity of transgender individuals and ensure their rights are not compromised.

Under the pretext of a security measure, prison officials often force these individuals to undress during search operations, subjecting them to humiliation and intrusive procedures. For male inmates, a male prison official conducts the search, and for female inmates, a female prison official conducts the search. However, the Model Prison Manual 2016 does not specify search methods for transgender prisoners, highlighting a policy gap that needs to be addressed.

In addition, transgender individuals in prisons, particularly in India, face a multitude of challenges. These range from misgendering and harassment to sexual violence. For example, Kiran, a transgender woman housed among 2,000 male prisoners in 2019, reported being sexually assaulted by both inmates and jail staff. In another case, a transgender individual accused a constable, a jail guard, two sub-inspectors, and a fellow inmate of sexual violence.

Consider another case of Ishu, a transwoman who was detained in 2017 at the Bengaluru Central Jail on suspicion of attempted murder and kidnapping when she was 19 years old. She had undergone breast augmentation surgery a few months prior to her detention. During her incarceration, she contracted a serious illness. Her condition worsened when the prison officials provided her with generic medicines. Despite her deteriorating health, she was not taken to the hospital for treatment until her legal representation team intervened. Tragically, she passed away shortly after.

These instances underscore the urgent need for prison reforms and better protection for transgender individuals in the prison system. The actual number of such incidents may be much higher due to underreporting and lack of recognition of transgender rights in many regions.

In addition to these individual cases, several studies and reports provide a broader perspective on the experiences of transgender individuals in prisons. These include "Lost Identity: Transgender Persons in Indian Prisons", "The Indian Prisons and The Search for Equality: The Problems Faced by Transgender Inmates", "LGBTQ People Behind Bars - National Center for Transgender Equality", and "Transgender Prisoners in Australia: An Examination of the Issues, Law...". These resources highlight the unique challenges faced by transgender inmates and emphasize the need for more inclusive policies and practices.

Access to healthcare is a significant challenge for transgender prisoners. They often struggle to access necessary medical care, which can have serious implications for their physical and mental health. The discrimination and unwanted attention they encounter can also contribute to mental health issues.

Economic challenges present another obstacle. Many transgender individuals in India depend on begging as their primary income source. However, begging is criminalized, leading to further economic difficulties. The lack of access to public amenities, such as public toilets and spaces, intensifies these challenges.

Medical negligence is a common occurrence in Indian prisons, particularly for those belonging to the transgender community. In conclusion, the experiences of transgender individuals in prisons are characterized by substantial challenges and injustices, highlighting the urgent need for reforms and protective measures.

Does Indian law offer transgender inmates any protection?,

Yes, Indian law does offer protections for transgender prisoners. Here are some key points:

The rights and protections for transgender prisoners in India are enshrined in the Transgender Persons (Protection of Rights) Act, 2019. Effective from January 2020, this Act recognizes a transgender person as one whose gender does not match the one assigned at birth. This includes transmen, trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.

The Act mandates separate enclosures or wards and separate toilets and shower facilities for transmen and transwomen to uphold their right to privacy and dignity. The self-identity of transgender persons is to be respected at all times, whether during admission procedures, medical examination, frisking, clothing, requisitioning of a police escort, or treatment and care inside prisons.

Searches on transgender individuals should be conducted by a person of their preferred gender or by a trained medical professional or a paramedic. The prison admission register has been revised to include "transgender" as a category alongside male and female gender.

Transgender inmates are entitled to equal healthcare rights, without any discrimination based on their gender identity. They are also permitted to interact with their family members, relatives, friends, and legal advisers and engage in after-care planning by probation, welfare, or rehabilitation officers.

Lastly, the training and sensitisation of prison personnel are crucial for developing an understanding of gender identity, human rights, sexual orientation, and legal frameworks for transgender persons. However, it's important to note that these rights are based on the existing legal frameworks, and the actual implementation may vary across different states and prisons.

However, while transgender inmates in India now have legislative frameworks that begin to address their rights and acknowledge that they need special consideration and protection, they still encounter many obstacles in exercising their legal rights while incarcerated. In Indian jails, transgender inmates are more likely to experience particular damages like prejudice and loss of legal protection. Their vulnerability is further increased by the fact that they are frequently disregarded and ignored by other prisoners.

Undoubtedly, it is a complex issue, but it is important to remember that at the heart of it are such individuals who, like all of us, deserve to be treated with respect and dignity. Their stories, struggles, and resilience are a testament to their enduring spirit and a call to action for us all to ensure equal rights and protections for every member of our society, regardless of their gender identity. Transgender people's right to self-identification must be maintained at all times, including during admissions processes, doctor visits, searches, hotel stays, attire, care, and police escorts. 

The saddest thing is that as per RTI act responses, no transgender person was recruited by the prison department in any state or union territory between January 1, 2014 and January 1, 2019, who could understand and understand such prisoners. Can get along well. It has been found that no awareness campaign has been conducted by the government to educate prisoners about the legal recognition of the third gender. The administration also does not receive any special training that could sensitize them on this subject.