LGBT people in prison
||The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject. (December 2011)|
Lesbian, gay, bisexual, and transgender (LGBT) prisoners often face additional challenges compared to heterosexual prisoners. According to Just Detention International, LGBT inmates are "among the most vulnerable in the prison population." 67% of LGBT prisoners in California report being assaulted while in prison. The vulnerability of LGBT prisoners has led some prisons to separate them from other prisoners, while in others they are housed with the general population.
While much of the available data on LGBT inmates comes from the United States, Amnesty International maintains records of known incidents internationally in which LGBT prisoners and those perceived to be lesbian, gay, bisexual or transgender have suffered torture, ill-treatment and violence at the hands of fellow inmates as well as prison officials.
Many LGBT inmates who are able, even those who are openly gay outside of prison, stay in the closet with their sexual identities while imprisoned, because inmates who are known or perceived as gay, especially lesbians and gay men with stereotypically butch or effeminate characteristics, respectively, face "a very high risk of sexual abuse."
Transgender issues (in the USA)
Transgender prisoners are especially vulnerable in US prisons due to a general policy of housing them according to their birth-assigned gender, regardless of their current appearance or gender identity. Even transgender women with breasts may be locked up with men, leaving them vulnerable to violence and sexual assault, as occurred with the case of Dee Farmer, a pre-operative transsexual woman with breast implants, who was raped and contracted HIV when she was housed in a men's prison. Transgender men housed in women's prisons also face abuse, often more from guards than other inmates. Harsh harassment and rejection are common forms of abuse toward inmates where gender/sexuality is unclear or does not conform to traditional expectations.
In 2010 it was reported that Italy was to open its first transgender prison at Pozzale, a decision welcomed by gay rights groups.
Transgender and intersex individuals are not only socially and culturally outcast, but are also systematically ostracized via legislation and law. For example, transgender women who try to gain entry into female prisons may be deterred from doing so by threat of removal of reproductive organs (usually testicles). This option may not even be viable until they have undergone a long and strenuous process of medical appointments, psychological evaluations, drug testing, etc. One trans woman was forced to dress as a man during visitation with her children because the court system deemed that it would confuse the children. This constant legal struggle not only adds more complexities to the inmate's life but may greatly affect the home life of an inmate's family, as the justice system forces the inmate to portray him or herself as something other than how they and family members may see themselves.
Trans people encounter a disproportionate level of violence in prison, particularly sexual violence. Many incarcerated trans people are not receiving the medical treatment that they were prior to being in prison. Most are denied hormonal treatment, even if prescribed prior to incarceration. One study noted that none of the prisons involved in the study were even equipped to handle the needs of transgender prisoners.
Some organizations that used to focus on women's issues have expanded to include transgender people and gender non-conforming people in their work. While many are seeking resources to support transgender prisoners (such as the bill mentioned in “Transgender Prisoners: A Critical Analysis of Queensland Corrective Services' New Procedure"), much work remains to be done. This particular bill has shown to be largely ineffective.
On November 14, 2013, Harris County, Texas adopted a LGBT inmate policy. This policy is intended to protect and assure equal treatment of gay, lesbian, bisexual and transgender inmates. This allows individuals to be housed based on the gender they identify with instead of their biological sex. The policy also outlines how inmates will be searched. It includes a “safe zone project” that will endorse a “positive relationship of solidarity” connecting the sheriff’s department and the gay community. Another important policy states that members of the transgender community will be referred to by their chosen name, even if it has not legally been changed, both when spoken to and on their identifications bracelets. The sheriff’s office in Harris County has a training and certification program for staff members to become a “gender classification specialist” and have authorization to hold discussions with inmates about gender issues.
Others have pointed out how certain actions can and do improve the lives of trans prisoners, such as “Transitioning Our Prisons Toward Affirmative Law: Examining the Impact of Gender Classification Policies on U.S. Transgender Prisoners” and “The Treatment of Transgender Prisoners, Not Just an American Problem – A Comparative Analysis of American, Australian, and Canadian Prison Policies Concerning the Treatment of Transgender Prisoners and a ‘Universal’ Recommendation To Improve Treatment." The premise for both of these papers is that individuals should always be addressed and placed based on gender identity than on their genitalia.
An important factor to take into account with work about transgender people in prison is the demographic patterns within the transgender population of incarceration, including ethnicity and gender. The National Transgender Discrimination Survey found that 35% of black transgender people have been incarcerated simply due to anti-trans bias, compared to 4% of white respondents. Black transgender people had higher rates of experiences of incarceration in general (47% compared to 12% of white transgender people). It also found that black trans women were sexually assaulted in jail at a rate of 38%, compared to 12% of white trans women prisoners.
In 2002 Dean Spade, a lawyer who is also transgender, founded the Sylvia Rivera Law Project which provides free legal services to 'low-income transgender, intersex, and gender non-conforming people' and uses education to end institutional discrimination against transgender people. It runs the Prison Rights Project, which 'supports low income transgender people and transgender people of color involuntarily held in prison, jail, lock-up and immigration detention obtain life-sustaining services'.
A conjugal visit is a scheduled extended visit during which an inmate of a prison is permitted to spend several hours or days in private with visitors, usually family members, in special rooms, trailers or even decorated, apartment-like settings on prison grounds. While the parties may engage in sexual intercourse, in practice an inmate may have several visitors, including children, as the generally recognized basis for permitting such a visit is to preserve family bonds and increase the chances of success for a prisoner's eventual return to life outside prison. Laws on conjugal visits vary widely by country from a total prohibition to very permissive policies. In jurisdictions where there is some form of recognition of same-sex relationships, prisoners may be permitted conjugal visits with a same-sex partner.[nb 1] In the United States, conjugal visits are allowed only in six states: California, Connecticut, Mississippi, New Mexico, New York and Washington, all of which except Mississippi have allowed same-sex marriage.
Same-sex conjugal visitation by country
- Opposite-sex conjugal visits have long been permitted, but a case in the central province of Córdoba has authorized same-sex conjugal visits as well. The ruling came after an inmate was twice punished with solitary confinement for having sex with his visiting partner in his cell. The inmate brought a lawsuit on the basis of a law that obliges authorities to "guarantee (the availability of) intimate relations for prisoners with their spouses or, alternatively, with their (partners)."
- In Australia, conjugal visits are only permitted in the Australian Capital Territory and Victoria. This includes visits by partners of the same-sex, provided they are not also incarcerated. Conjugal visits of any type are not allowed in New South Wales, Queensland, South Australia, Tasmania, Western Australia and the Northern Territory.
- Same-sex conjugal visits, for a maximum of two hours per month, are permitted for both men and women.
- Same-sex conjugal visits are permitted for all inmates.
- All inmates, with the exception of those on disciplinary restrictions or at risk for family violence, are permitted "Private Family Visits" of up to 72 hours' duration once every two months. Eligible visitors, who may not themselves be prison inmates, are: spouse, or common-law partner of at least six months; children; parents; foster parents; siblings; grandparents; and "persons with whom, in the opinion of the institutional head, the inmate has a close familial bond." Food is provided by the institution but paid by the inmates and visitors, who are also responsible for cleaning the unit after the visit. During a visit, staff members have regular contact with the inmate and visitors.
- Caribbean region
- Conjugal visits are not permitted in the Caribbean. Marcus Day, adviser to the Association of Caribbean Heads of Corrections and Prison Services has urged the implementation of opposite-sex conjugal visitation for male inmates and the provision of condoms within prisons in an effort to stop the spread of HIV. Day attributes the spread of HIV/AIDS in prisons to "homosexual relationships among otherwise heterosexual men and homosexual rape," situations he said are rife in Caribbean prisons:"Allow men to have the women come and visit them in prison and have a private room where they can make love to each other and the desire to have same-sex relationships will be greatly reduced," claimed Day.
- On October 11, 2001, the Colombian Supreme Court issued a verdict in favour of the right to same-sex conjugal visits in a case brought by Alba Nelly Montoya, a lesbian in the Risaralda Women's Prison. This was not the first case regarding same-sex conjugal visitation in the country. Marta Alvarez, another lesbian inmate, had been campaigning since 1994 for the same right, and on October 1, 1999 her case became the first ever sexual orientation-related case presented before the Inter-American Commission on Human Rights. In her petition, Alvarez had argued that her rights to personal dignity, integrity, and equality were being infringed upon by the denial to allow her conjugal visits in prison, since the Colombian National Penitentiary and Prison Institute (INPEC) granted conjugal visitation rights in a discriminatory fashion to heterosexual men and women (the latter restricted to visits from husbands only), and denied this right to same-sex couples.
- While the Colombian government admitted its failure to grant conjugal visitation to Alvarez constituted "inhuman and discriminatory" treatment, it continued to deny such visits, arguing reasons of security, discipline, and morality. Alvarez was also subjected to retaliatory disciplinary measures, including being transferred to a men's prison, which ceased following a domestic and international protest campaign.
- Costa Rica
- In August 2008, the Costa Rican Constitutional Tribunal rejected a man's appeal in a lawsuit against prison authorities who stopped his conjugal visits to his male partner, a current inmate, ruling that gay inmates do not have the right to conjugal visits. The court recently rejected this ruling and now allows same-sex conjugal visits. 
- In July 2007, the Mexico City prison system began allowing same-sex conjugal visits on the basis of a 2003 law which bans discrimination based on sexual orientation.
- Same-sex long or official visits are prohibited, but short visits for friends can be organised if one is imprisoned in a so-called kolonija-poselenie. Official sex in prison is possible only during the 1–3 day long visit of a registered heterosexual spouse.
- United States
- In June 2007, the California Department of Corrections announced it would allow same-sex conjugal visits. The policy was enacted to comply with a 2005 state law requiring state agencies to give the same rights to domestic partners that heterosexual couples receive. The new rules allow for visits only by registered married same sex couples or domestic partners who are not themselves incarcerated. Further, the same sex marriage or domestic partnership must have been established before the prisoner was incarcerated. In April 2011, New York adopted to allow conjugal visits for currently married, or civil-union spouses same-sex partners.
According to Masen Davis, Executive Director of the Transgender Law Center, LGBT people in prisons often face barriers in seeking basic and necessary medical treatment, exacerbated by the fact that prison health care staff are often not aware of or trained on how to address those needs. For example, like Michelle Kosilek did in May 2006, two transgender prisoners filed suit in January 2008 challenging a Wisconsin law that bars inmates from receiving hormones or sex reassignment surgery notwithstanding Principle 9 of The Yogyakarta Principles. The significance of the Yogyakarta Principles is also stressed by "Handbook on prisoners with special needs" published by the United Nations Office on Drugs and Crime.
However, on August 31, 2001, the Canadian Human Rights Tribunal concluded that Sections 30 and 31 of the Correctional Service of Canada contained discrimination on the basis of sex and disability in Canadian Human Rights Act. after Synthia Kavanagh, a transwoman with a 1989 life sentence for 2nd-degree murder, was sent to the institution for males and denied sex reassignment surgery, despite the trial judge's recommendation.
Rates of HIV infection are nearly five times higher among incarcerated men in the United States than in the general population, according to a 2002 study by the National Commission on Correctional Health Care, and AIDS is the second most frequent cause of death in US prisons. Rape is a frequent cause of HIV transmission among prisoners, but in most US prisons, inmates are not permitted access to condoms.
LGBT youth prisoners
According to some studies, LGBT youth are particularly at risk for arrest and detention. Jody Marksamer, Shannan Wilber, and Katayoon Majd, writing on behalf of the Equity Project, a collaboration between Legal Services for Children, the National Center for Lesbian Rights, and the National Juvenile Defender Center, say that LGBT youth are overrepresented in the populations of youth who are at risk of arrest and of those who are confined in juvenile justice facilities in the United States.
Physical and sexual abuse
According to Amnesty International, globally, LGBT prisoners and those perceived to be LGBT, are at risk of torture, ill-treatment and violence from other inmates as well as prison officials. Amnesty International cites numerous cases internationally where LGBT inmates are known to have been abused or murdered by prison officials or fellow inmates.
Statistics show that 59% of transgender women in male prisons had been sexually assaulted while incarcerated compared to the 4% of the male-identified population. Transgender women in male prisons also deal with the risk of forced prostitution by both prison staff and other prisoners. Forced prostitution can occur when a correction officer brings a transgender woman to the cell of a male inmate and locks them in so that the male inmate can have sex with her. The male inmate will then pay the correction officer in some way and sometimes the correction officer will give the woman a portion of the payment.
"[P]risoners fitting any part of the following description are more likely to be targeted: young, small in size, physically weak, gay, first offender, possessing "feminine" characteristics such as long hair or a high voice; being unassertive, unaggressive, shy, intellectual, not street-smart, or "passive"; or having been convicted of a sexual offense against a minor. Prisoners with any one of these characteristics typically face an increased risk of sexual abuse, while prisoners with several overlapping characteristics are much more likely than other prisoners to be targeted for abuse."
Gay and bisexual men are often assumed to be responsible for the preponderance of sexual assaults perpetrated in prisons as has been reflected in various American judicial decisions. For example, in Cole v. Flick[nb 2] the court upheld the right of prisons to limit the length of inmates' hair, claiming that allowing them to wear long hair could lead to an increase in attacks by "predatory homosexuals." In Roland v. Johnson,[nb 3] the court described "gangs of homosexual predators." And Ashann-Ra v. Virginia[nb 4] contains references to "inmates known to be predatory homosexuals [stalking] other inmates in the showers." According to a study by Human Rights Watch, however, "The myth of the 'homosexual predator' is groundless. Perpetrators of rape typically view themselves as heterosexual and, outside of the prison environment, prefer to engage in heterosexual activity. Although gay inmates are much more likely than other inmates to be victimized in prison, they are not likely to be perpetrators of sexual abuse." (see also situational homosexuality)
A related problem is that there is a tendency, among both prison officials and prisoners, to view victimization as proof of homosexuality: "The fact of submitting to rape—even violent, forcible rape—redefines [a prisoner] as 'a punk, sissy, queer.'" Officials sometimes take the view all sex involving a gay prisoner is necessarily consensual, meaning that victims known or perceived to be gay may not receive necessary medical treatment, protection, and legal recourse, and perpetrators may go unpunished and remain able to perpetrate abuse on their victims:
I have been sexually assaulted twice since being incarcerated. Both times the staff refused to do anything except to lock me up and make accusations that I'm homosexual.
According to Andrea Cavanaugh Kern, a spokesperson for Stop Prisoner Rape, the combination of high rates of sexual assault against gay prisoners and high rates of HIV infection in the prison population is "a life-or-death issue for the LGBT community."
While much of the data regards male prisoners, according to Amnesty International, "perceived or actual sexual orientation has been found to be one of four categories that make a female prisoner a more likely target for sexual abuse."
For their own safety, LGBT people in prison are sometimes placed in administrative segregation or protective custody. Although homosexuality is "generally regarded as a factor supporting an inmate's claim to protective custody," homophobia among prison officials and a misperception among many guards that "when a gay inmate has sex with another man it is somehow by definition consensual" mean that access to such custody is not always easy or available.
Another problem is that protective and disciplinary custody are often the same, which means that prisoners in "protective housing" are often held with the most violent inmates in highly restrictive and isolated settings—sometimes in more or less permanent lockdown or solitary confinement—that prevent them from participating in drug treatment, education and job-training programs, from having contact with other prisoners or outside visitors, or from enjoying privileges such as the right to watch television, listen to the radio, or even to leave their cells. The degree of safety that protective custody provides depends on the facilities. Protective custody can provide a secure environment that is free from violence by other prisoners or it can isolate prisoners, and position them with a higher risk of violence by a correctional officer. Although the protective custody can offer some level of protection, the harmful physical and psychological impacts of isolation show that it is an unwanted alternative to assignment in the general population.
In other cases, institutions may have special areas (known by such nicknames as the "queerentine", "gay tank," "queen tank," or "softie tank") for housing vulnerable inmates such as LGBT people, elderly or disabled prisoners, or informers. In San Francisco, for example, transgender inmates are automatically segregated from other prisoners. Nevertheless, according to Eileen Hirst, San Francisco Sheriff's Chief of Staff, being gay is not in itself enough to justify a request for protective housing: inmates requesting such housing must demonstrate that they are vulnerable.
For financial or other reasons segregated housing is not always available. For instance at Rikers Island, New York City's largest jail, the segregated unit for LGBT prisoners, known as "gay housing," was closed in December 2005 citing a need to improve security. The unit had opened in the 1970s due to concerns about abuse of LGBT prisoners in pretrial detention. The New York City Department of Corrections' widely criticised plan was to restructure the classification of prisoners and create a new protective custody system which would include 23-hour-per-day lockdown (identical to that mandated for disciplinary reasons) or moving vulnerable inmates to other facilities. Whereas formerly all that was required was a declaration of homosexuality or the appearance of being transgender, inmates wanting protective custody would now be required to request it in a special hearing.
- As of December, 2008, homosexual behaviour remains illegal in over 80 countries (see Homosexuality laws of the world). Only countries that allow same-sex conjugal visits, or where same-sex conjugal visitation rights have been addressed in law are included on this list, in addition to a sub-list of countries that do not allow conjugal visitation for any inmates at all.
- 758 F. 2d 124 (3d Cir. 1985). According to trial documents, four expert witnesses, all of them prison wardens, testified to the legitimacy of this concern, stating their belief that "a correlation exists between security problems resulting from prison homosexuality and long hair, and that predatory homosexuals are more likely to attack or become involved in a fight over a long-haired inmate than a short-haired one."
- 1991 U.S. App. LEXIS 11468 (6th Cir. 1991)
- 112 F. Supp. 2d 559, 563 (W.D. Va. 2000)
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- http://buenoecostanze.adv.br/index.php?option=com_content&task=view&id=10869&Itemid=74 ///http://www.jusbrasil.com.br/noticias/2002357/decisao-judicial-garante-visitas-intimas-a-presos-homossexuais-no-para
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- Handbook on prisoners with special nees, UN Office on Drugs and Crime, p.110
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