Compensation for transgender prisoners kept in male section despite living as women

Government says it will not appeal decision

A group of seven transgender prisoners at Corradino have each been awarded €5,000 in compensation for inhuman, degrading treatment and discrimination after they were kept in the male section of the prisons despite living as women, because their ID-cards showed them to be men.

The seven had sued the Director of Prisons, saying that at the time they were imprisoned, their ID cards showed them to be men and they had male names, different from what they have today. Yet they lived as women, internally and in appearance and had a female physique.

Nonetheless, the director of prisons treated them as men as identified on their ID cards, with serious consequences on their lives. 

Subsequently, some of them in terms of the law changed their ID cards to show them to be women. Others were in the process of doing so. Nonetheless, the director had ignored this change and they continued to be detained in the men’s section of the prisons.

After the Gender Equality Act was approved in December 2015, five of them were given a choice of either staying in the men’s section or moving to the women’s section. But moving to the women’s section meant they had to give up their jobs and educational activities within the prison, something which they could not accept, not least because the loss of income meant they could no longer afford their hormone treatment. 

The prisoners said that the fact that they were constrained to stay in the male section, with the male prisoners, had serious consequences on them. They faced daily vulgar insults and sexual harassment and sometimes violence.

In order to avoid showering with the men they organised themselves to shower later, while one of them stood guard at the door. They often could not shower for days.

They were not allowed to wear female clothes, including underwear, not even when they needed to go to court and they were subjected to humiliating searches by male warders.

While female prisoners had access to a hairdresser, they did not.

The prisoners said prison rules laid down that they had to be treated with dignity and respect. Yet they were subject to ongoing fear of sexual and psychological violence, degrading and humiliating treatment. 

They asked the court to declare that they were being subjected to degrading and inhuman treatment, discrimination and violation of their private life on account of their gender. They also asked the court and to order remedial action and compensation.

In his reply, the director pointed out that some of the prisoners had admitted that they were offered the choice of moving to the women’s section of the prisons.

Furthermore, those still in the men’s section were now in single occupancy cells. No complaints had been received about the alleged insulting behaviour. They had also now been given the option of using the showers in the early afternoons when the men were in their cells.

The prisoners were also being allowed to wear what they liked. The searches were carried out by male warders because the prisoners opted to continue to stay in the men’s section.

The court in its findings said most of the prisoners who instituted this case had been at the prisons for many years and as a result of prison procedures they had suffered humiliation and degrading treatment.

Once the gender law was changed, they were offered to move to the women’s section but despite their treatment, they opted to stay in the men’s section, because the move would have caused them to lose their jobs and education opportunities.

The court said that it was only after the change of the law in 2015, and following the appointment of a new prisons director in 2016 that the situation for these prisoners started to improve, even though the two foreign ones could not change their ID cards.

Nonetheless, when some of the prisoners did opt to go to the women’s section they found a disastrous situation, with dirty cells having previously been used as storerooms and blood-stained mattresses. As a result, they even held a two-day hunger strike.

The prisoners had also suffered ‘truly disgusting’ treatment by other prisoners and warders including beatings and humiliation.

The court agreed that the choice to move to the women’s section was a Hobson’s Choice for most of the prisoners.

The court, presided by Mr Justice Silvio Meli, concluded that the prisoners had proven that they had suffered inhuman, degrading and discriminatory treatment in terms of the Constitution and the European Convention on Human Rights. 

It also noted that the current director of prisons had started to bring about change aimed at addressing the grievances. 

The court ordered the Director of Prisoners to continue on the reforms which had been embarked upon. The director was also ordered to pay each prisoner €4,000 as pecuniary compensation and €1,000 each for violation of their personal dignity. 

The inmates were represented by lawyers Neil Falzon and Carla Camilleri from aditus foundation, and Cedric Mifsud.  

In a statement in the evening, the government said it will not appeal the decision and had already implemented further measures to change the pre-existing system which catered for such injustices.

The court, it said, had acknowledged the efforts already made by the facility’s administration including the adoption of a dedicated policy and adequate gender diversity training for prison wardens.

Current policies clearly outlined the procedures to be followed by the correctional services in the event of a trans, gender variant, or intersex inmate and enabled all inmates to be treated fairly and without discrimination.

Through such policies the government facilitated compliance with international and European laws.

The government had also introduced a specific legal provision to ensure that inmates who were unable to change their legal documents in their home country would still able to be accommodated in prison according to their lived gender.

Additional efforts and resources in this regard would be made to ensure that the human rights of all inmates we re protected and laws upheld with respect to dignity, equity, and social justice.