Transgender Women Face Abuse And Sexual Violence In Male Detention Facilities

Inadequate Protection of Transgender Women in Male Detention Facilities

Question:

Discuss about the Bodies on The Inside Gender and prison.

A media article was published in news.com.au on April 18, 2016 which reported about the torture that was faced by a transgender woman in a male prison of Australia. According to the report all the transgender women who contradict the laws are sent to male prisons as they are not considered as female at all. The victim in the instant case was asked to strip and was raped for more than 2000 times during her detention in the prison. Another transgender women flew to US for seeking asylum after she got tortured and sexually molested. In US she was kept detained with male prisoners where again she was sexually assaulted by the guards of the immigration (Lambert 2016).

Yet another trans- woman who was kidnapped, tortured and sexually assaulted by gang members in her native State escaped to US where she was kept in detention facility with men. The guards in the detention facility failed to protect her from being harassed and sexually assaulted (Lambert 2016).

According to the Coordinator of LGBT Community Rights Program at Human Rights Watch, Adam Frankel a number of women from transgender community who come to US to seek asylum after being abused in their native territories are kept detained in the immigration facility with men where they are exposed to more risk of sexual abuse and violence by the other male detainees and the detaining authorities. The abuse is of the same nature which they tried to escape from their native territories. They also have to sleep and bathe in the same place as other male detainees. Further they are often exposed to embarrassing and offensive strip examination by male authorities and the guards fail to protect them from the abuse (Human Rights Watch 2016).

According to a report of Human Rights Watch the present detention rules of the US immigration centers require the detention of trans- women in male detention facility. As per the estimates of Immigration and Customs Enforcement of US around sixty- five trans- women are detained in immigration facilities of US. Further the report also says that women of transgender community have to live in poverty, and experience violence and discriminatory behavior. According to observations made by a number of other studies trans- women who have a darker complexion or are poor and deprived have to face oral, corporal and carnal abuse during the period of detention. They also face hurdles in getting access to hormonal replacement therapy and HIV treatment (Stauffer 2016).

Instances of Abuse and Sexual Violence in Male Detention Facilities

According to some academic writers violence and male domination has been accepted as a culture in male prisons and male detention facilities in United States. Many countries deny to accept the fact that violence and rape takes place in their prison while many other do not accept violence and rape in male prisons and have made laws to punish such offences. In some other countries sexual act and sexual violence are considered as common trend in prisons and detention facilities. The sexual acts taking place inside the prisons require an improved consideration for reasons like the occurrence of sexual violence, the threat of HIV infection and also the possibility of the restoration of ex- offenders (Sim 1995).

It is assumed that most of the sexual acts occurring in detention centers are a result of forceful sexual activity rather than a consensual one. But on the contrary some texts are of the view that some of these sexual activities are consensual. Further these sexual activities occurring in detention facilities are one of the major contributors to the increasing number of persons infected through HIV. The distinction between sex through consent and forceful sex inside a detention facility is very vague. In most of the cases the nature of sexual act is forceful or coercive. This vagueness has been one of the factors behind the rise in sex studies inside the prisons (Gear 2001).

According to gender studies, hegemonic masculinity relates to the acceptance of male dominance over other genders of the society and the subordination of the latter. Such domination of male groups and subordination of the others is legitimately accepted by the society at large. The gender studies has also given scope to feminism and transgender studies. The increase in feminism and transgender studies further gives scope to criticize the idea of hegemonic masculinity. On the contrary, the studies related to prison are not based on gender in particular rather they focus on criminals as distinct from gender (Sim 1995).

The acts of violence by men in the detention in addition to the trend of hegemonic masculinity, individual power of men and male dominance has been accepted as truth of prisons and aggressive masculine milieu. The men are the rulers in the kingdom of prison who govern the rules of the prison. The persons of transgender community are considered to be the queen of the prison. They are looked at as submissive females to the carnal desires of the male community. These reported consequences of power deprivation and the construction of gender roles are unsurprisingly presented as the primary roots of rape in prison (Sim 1995).

Lack of Access to Medical Care for Transgender Women

Some of the sociologists and psychologists are of the perception that sex is a fundamental requirement. Consequently, if human beings are deprived of it they look for other ways to fulfill that requirement.

The acceptance of hegemonic masculinity gives arbitrary right to the male prisoners as well as the detaining authorities at the immigration to exercise male dominance on the other detainees in the facility. One another drawback of the recognition of hegemonic masculinity is exclusion of female authorities at the immigration facilities.

According to a writer male detainees see forced sex as a means to exercise hostile dominance and carnal gratification. A number of writers are of the view that rape is related with matters of dominance and power. Therefore the object could possibly be power yet it could give occasion for committal of rape. Also in the case of rape the carnal gratification might be the initial objective but the act is caused in furtherance of the exercise of power.

One of the factors responsible for the committal of rape in detention facilities, as have been observed by some of the writers, may be boredom. Another factor may be the length of the period of detention. The reason behind increasing number of incidents of rape and sexual violence in the detention facility is corruption and ineffectuality on the part of the detention authorities.

Isa Noyola, the Director of Programs at Transgender Law Center, San Francisco, says when women of transgender community are put into male detention cells by the State they are put in the danger of being sexually violated (Human Rights Watch 2016).

Flor Bermudez another authority from Transgender Law Center of San Francisco says women of transgender community are beaten, harassed, raped, sexually abused and put in isolation in the detention facility. They are not given access to medical care, HIV medication and hormonal replacement therapy (Human Rights Watch 2016).

The Constitution of USA secures safety and health of every prisoner of transgender community irrespective of the fact where they are detained. Further the Prison Rape Elimination Act, also makes provision for the protection of prisoners of transgender community. Both the legislations make provisions to cover the prisoners who are detained in private facilities or where the detaining staff is not a government authority (National Center for Lesbian Rights 2014).

The court has observed that denial to provide hormone therapy to transgender prisoners is in violation of the Equal Protection Clause (Fields v. Smith 653 F.3d 550, 2011 U.S. App. LEXIS 16152).

The Role of Violence and Hegemonic Masculinity in Male Detention Facilities

The Prison Rape Elimination Act was enacted to make provisions to control the acts of sexual violence and torture occurring in prisons, detention centers and immigration facilities (Prison Rape Elimination Act 42 U.S.C. § 15601). The Department of Justice of USA dispensed final rules for the implementation of the Act in 2012. These rules are called Standards. These Standards did not made provisions for its application on immigration detention facilities but later on in 2014 rules were made by the Department of Homeland Security (DHS) for the purpose. Also prisoners have no right to bring action against the detaining authorities in case of violation of these Standards by the latter (De’lonta v. Clarke No. 7:11-cv-00483, 2013 WL 209489 at *3 (W.D. Va. Jan. 14, 2013)).

In one of its report Human Rights Watch gave some recommendations to the US government regarding the detention of trans- women in male detention facility. The report gave recommendations to make substitute detention facilities for transgender women and not detain them in male facility, to revise its rules regarding the detention of trans- women in detention centers and to ensure that those rules are in confirmation to the international law and to make rules for the safe detention of trans- women with respect to their human rights, to take measures to ensure that violence and harassment of any kind towards the trans- women detainees is stopped and to provide them  the medical care required by them (Stauffer 2016).

Conclusion

According to the media article and other reports presented by different authorities the vulnerable position of transgender women in immigration centers is evident. The government of United States is taking measures to protect their basic human rights. The main reason behind their deteriorating position is the gender identity crisis that some sections of the world society are facing till date. The LGBT community still face gender identity crisis in most of the countries. The main reason behind this is the non- acceptance of their orientation on the part of the other sections of the society. This is also quite evident in the writings of some of the academic writers who have accepted the male dominance and hegemonic masculinity culture in prisons and detention centers. This acceptance further degrades the social status of the non- accepted community of the society. It is the need of the hour to give recognition to their gender, orientation and human rights.

References:

De’lonta v. Clarke No. 7:11-cv-00483, 2013 WL 209489 at *3 (W.D. Va. Jan. 14, 2013).

Fields v. Smith 653 F.3d 550, 2011 U.S. App. LEXIS 16152.

Gear, S. 2001, ‘Sex, sexual violence and coercion in men’s prisons’, Centre for the Study of Violence and Reconciliation. Available from: https://csvr.org.za/docs/correctional/sexsexualviolence.pdf. [8 September 2017].

Human Rights Watch 2016, US: Transgender women abused in immigration detention, face sexual assault, solitary confinement, Available from: https://www.hrw.org/news/2016/03/23/us-transgender-women-abused-immigration-detention. [8 September 2017].

Lambert, O 2016, ‘A transgender woman talks about life in a male prison’, news.com.au, 18 April 2016. Available from https://www.news.com.au/national/queensland/a-transgender-woman-talks-about-life-in-a-male-prison/news-story/ae7ecb63dbc4da82cc56b4f1a97267f3.  [7 September 2017].

National Center for Lesbian Rights, 2014, Know your rights: laws, court decisions, and advocacy tips to protect transgender prisoners, American Civil Liberties Union. Available from: https://www.nclrights.org/wp-content/uploads/2013/07/RightsofTransgenderPrisoners.pdf. [8 September 2017].

Prison Rape Elimination Act, 2003.

Sim, J 1995, ‘Tougher than the rest? Men in prison’, in T Newburn & EA Stanko (ed) Just Boys Doing Business?: Men, Masculinities and Crime, Taylor and Francis. Available from: ProQuest EBook Central. [8 September 2017].

Stauffer, B. 2016, “Do you see how much I’m suffering here?” Abuse against transgender women in US immigration detention, Human Rights Watch, Available from: https://www.hrw.org/report/2016/03/23/do-you-see-how-much-im-suffering-here/abuse-against-transgender-women-us. [8 September 2017].