Transgender inmates in the Netherlands: should they be sent to men’s or women’s prisons?

How do you ensure the rights of transgender inmates in a world divided into men’s and women’s prisons? Law student Lieke Erven explores this issue in her master’s thesis: ‘The policy in the Netherlands is at odds with the European Convention on Human Rights.’

What is your thesis about?

‘My thesis focuses on the placement of transgender inmates in Dutch prisons. The Netherlands uses a binary system, with separate prisons for men and women. But what happens to people who identify with a gender different from the one they were assigned at birth?

‘Currently, placement decisions in the Netherlands are based on the gender registered in the Personal Records Database (BRP). This creates issues because not all transgender people have changed their gender in the BRP.’

Why is that a problem?

‘It’s problematic because the Netherlands is bound by the European Convention on Human Rights (ECHR). Article 3 of that convention states that no one shall be subjected to torture or inhuman or degrading treatment or punishment.

‘The European Committee for the Prevention of Torture (CPT) recently issued guidelines on the placement of transgender inmates. In light of Article 3, the state must ensure that these guidelines are followed to prevent violations.

‘The definitions of torture, humiliation, or punishment are complex, but the CPT has stated that the improper placement of a transgender inmate could indeed constitute humiliation. Placing someone based on their birth gender rather than the gender they identify with can cause severe psychological harm.

‘The placement of transgender inmates in the Netherlands is at odds with Article 3 of the ECHR. The country does not meet the requirements of this article because there is a lack of a proper placement system for transgender inmates.’

Is this a significant problem in the Netherlands?

‘It’s hard to determine the full extent of the problem due to a so-called ‘dark number.’ Many transgender inmates are reluctant to openly discuss their identity out of fear of negative reactions, especially in a prison environment where macho behavior is often the norm. As a result, many cases go unnoticed. But even if it only affects one person, it’s crucial that their placement is handled correctly.

‘Unfortunately, there is little attention to this issue in the Netherlands. The Dutch Lawyers Committee for Human Rights did send a letter to the former Minister for Legal Protection, Franc Weerwind, to highlight the placement of transgender inmates. They are advocating for regulations to address this problem.’

Are there known incidents that illustrate this problem?

‘A well-known example comes from England, where an incident made the need for careful policy regarding the placement of transgender inmates painfully clear. It involved a trans woman, born male, who, during her trial, identified as a woman. This person was accused of sexual offenses, already a very sensitive subject, and it sparked much debate about her proper placement.

‘Because she identified as a woman, she was eventually placed in a women’s prison, despite not having undergone hormone treatment or gender confirmation surgery. Once in the women’s prison, this person sexually assaulted two female inmates.

‘This incident led to a significant hardening of policy in England towards transgender inmates, with growing distrust and calls for stricter rules. Transgender people, partly due to this incident, are now seen as a threat to prison safety, rather than individuals with specific needs that must be carefully considered.

‘Instead of resorting to strict measures and discrimination, as we see in England, we should be moving away from policies that lead to inhumane or degrading treatment, in line with Article 3 of the European Convention on Human Rights. Ensuring human dignity and respecting the rights of all inmates must be the focus.’

What is needed to achieve this?

‘The most effective approach would be for a judge to address this issue in a case. A legal ruling has binding power, meaning the government and relevant institutions would be obligated to respect the decision and adjust their policies accordingly.

‘Even better would be if the European Court of Human Rights (ECHR) were to rule on this matter. A ruling from the ECHR has a much broader impact, as it is binding on all European Union member states. This would lead to a more uniform and fair treatment of transgender inmates across Europe.

‘Additionally, it is crucial that medical experts and psychologists are always involved in decisions about the placement of transgender inmates. A medical expert can assess the physical and hormonal aspects of the inmate’s situation, while a psychologist can gauge the psychological state and specific needs of the individual.’

_Advertentie.