Transgender prisoners in Hong Kong deserve respect and support, in keeping with their social identity

Grenville Cross says prison management reforms in the UK and Thailand show how criminal justice systems are tuning into gender nuances, examples that Hong Kong’s impressive correctional services could follow

PUBLISHED : Wednesday, 15 February, 2017, 12:34pm
UPDATED : Wednesday, 15 February, 2017, 8:30pm

In November, following the deaths of two transgender women in men’s prisons, Britain’s justice ministry reported that it was “apparent that the treatment of transgender people in courts, probation and prison services has not kept pace with the development of a more general understanding of the issues surrounding gender in society”.

The UK Equality Act 2010 makes it an offence to discriminate against or harass anyone over gender reassignment, and the needs of transgender prisoners clearly require special recognition.

In January, US president Barack Obama commuted the 35-year jail term of former soldier Chelsea (previously Bradley) Manning, America’s best-known transgender prisoner, to just over seven years. She had been convicted of over 20 offences of passing classified military documents to WikiLeaks.

Watch: WikiLeaks whistle-blower Chelsea Manning shown clemency by Barack Obama

Obama may also have been influenced by her sad predicament, as the only transgender woman in an all-male army prison. Manning, who will be released in May, needs cross-sex hormone therapy with specialised treatment, which the military is ill-equipped to provide. A desperate Manning, who twice attempted suicide, wrote to tell Obama “I need help” – and was certainly not alone.

Fifty-nine per cent of transgender women in American prisons have reported being sexually assaulted, by both prisoners and staff

In 2015, after Ashley Diamond – a transgender prisoner in Georgia denied medically necessary hormones – was raped seven times, and placed in solitary confinement for claiming to be a woman, the US Justice Department decreed that Georgia’s policy of denying hormone treatment to transgender prisoners was “cruel and unusual treatment”, and violated the US Constitution. Fifty-nine per cent of transgender women in American prisons have, moreover, reported being sexually assaulted, by both prisoners and staff.

In its 2016 review, Britain’s justice ministry said that, in March/April there were 70 transgender people in 33 of the 123 prisons in England and Wales. Current practices, it found, were outdated, and to allow transgender offenders to experience the criminal justice system in the gender they identified with would be the most humane and safest course, and “also assist successful rehabilitation”.

Transgender woman kept with men to protect female inmates, Hong Kong court hears

Transgender prisoners in Hong Kong suffer sexual assault, denial of hormones

On January 1, therefore, the UK’s National Offender Management Service adopted new procedures for transgender offenders, which require the prison authorities to ensure they are treated “fairly, decently and lawfully”. Transgender prisoners are now allowed “to express the gender with which they identify”, and those wishing to be placed in a prison location that is not consistent with their legally recognised gender will, after assessment, be accommodated.

In Thailand, where about 6,000 out of some 300,000 prisoners belong to sexual minority groups, consideration is now being given to creating a special prison for transgender offenders (and other minorities) outside Bangkok, to facilitate both treatment and safety.

Transgender woman’s detention in Hong Kong all-male prison ‘unconstitutional’, court told

Correctional facilities must provide transgender prisoners with a supportive environment, which enables them to live in the gender they seek to acquire. They should be protected from harm, and staff must understand the nuances of gender identity. Ideally, as Britain’s justice ministry says, prisons must produce a care plan outlining “how the individual will be managed safely and decently within the prison environment, with oversight from psychologists, health care professionals and prison staff”.

Hong Kong has little experience of transgender offenders, but the Correctional Services Department, with its impressive record of looking after inmates’ interests, will wish, in view of developments elsewhere, to ensure that all such prisoners are treated in a way that respects their social identity.

Grenville Cross SC is a criminal justice analyst