Discrimination Against Transgender Inmates: Justice And Equality Rights

INDIVIDUALS whose gender identity or expression does not correspond with their assigned sex at birth are referred to as “transgender”. The majority of individuals identify as either female or male, though some may identify as both or neither. A transgender man is a person born with the female pronoun who identifies as male. A transgender woman is an individual who was assigned the male gender at birth but identified as female. Contrarily, the term “cisgender” refers to people whose gender identity matches the sex to which they were born.

Since this group is a minority in this country, transgender people have always been subjected to various forms of discrimination and abuse, including arbitrary detention and arrest, sexual assault, and other forms of abuse, as well as financial and sexual extortion. The government provides transgender individuals with minimal or no protection at all. If a transgender woman is found guilty of a crime and given a prison sentence, she will most likely be housed in a facility that houses male inmates. In these facilities, transwomen face a significantly increased risk to their safety as they are more likely to be sexually assaulted by both the wardens and other male inmates.

Transgender inmates have reportedly been raped by prison wardens who work for the Malaysian Prison Department, according to Human Rights Watch. In other cases, fellow inmates sexually assaulted transwomen and were not protected by the authorities. If they are lucky enough, sometimes they will be placed in separate prison cells due to individual negotiations with police officers or wardens. A trans woman known as Millen Cyrus, an Instagram influencer, was detained in North Jakarta on suspicion of drug possession, and the Indonesian police later came under fire for holding a trans woman in a male jail cell after her arrest. The police claimed they were acting in accordance with the sexual orientation identified on her identity card. Human rights advocates have condemned the action as reckless and insensitive.

In countries like England and Wales, the High Court has ruled that it is acceptable for transgender women to be housed in female prisons. In a judgement, Lord Justice Holroyde acknowledged statistical data that indicated a “substantially higher” proportion of trans prisoners were convicted of sexual offences than non-transgender men and women prisoners. The Prison Rape Elimination Act of 2003 (PREA) was enacted in the United States, and its regulations were finalised in 2012. The Prison Rape Elimination Act (PREA) Standards are a detailed set of federal regulations that cover every facet of a facility’s operations with regard to preventing, identifying, and responding to abuse. This Act stipulates that facilities must screen all individuals upon admission and transfer in order to determine their risk of experiencing or perpetrating abuse, including identifying those who may be at risk due to their transgender status, gender nonconformity, sexual orientation, or intersex condition. Additionally, the individual’s perception of their own vulnerability must be taken into account.

Justice, or ‘Adl in Arabic, refers to putting something in its proper place as well as treating others equally or achieving a state of equilibrium in a transaction. Ulpian, a Roman jurist, asserts that the fundamental principle of the law is “honeste vivere, alterum non laedere, suum cuique tribuere,” which roughly translates as “the law should cause one to live honestly, not cause harm to another, and give each person his or her due.” This maxim reflects the need for the law to be moral and just, granting each individual’s rights and dues. In Anarchy, State, and Utopia, Robert Nozick opines that justice is a matter of entitlement. According to him, an individual must have rights to his entitlements, and if those rights are violated, he must be compensated. Hence, it is not an exaggeration to say that transgender people as an individual are also entitled to justice regardless of their gender and how the society perceives them.

In his book, The Philosophy of Law, Antonio Estrada claims that nature has made every man distinctively equal and different. According to Hari Chand, the right to be treated equally entails the ability to receive the same level of consideration and respect as everyone else. John Rawls, another philosopher, insists that for there to be true equality of opportunity, society must devote more attention to minorities and those born into less privileged social circumstances.

Transgender people who have been assaulted because of their gender identity frequently have difficulty gaining access to justice. They believed they were not afforded equal protection under the law or that they would not be. Therefore, I believe that Malaysian government representatives, politicians, and religious leaders should refrain from making incendiary and derogatory remarks regarding transgender individuals and instead take measures to safeguard them from violence and discrimination. When this kind of wrongdoing happens, the authorities should look into it and take disciplinary or legal action as needed.

Ultimately, from my personal standpoint, a person’s anatomy or the gender assigned to them at birth cannot be the only criteria used to determine where a transgender person or a person with an intersex condition is housed; instead, each case must be evaluated individually. As an illustration, each transgender woman must be evaluated individually to determine whether it is preferable for her to live with other women rather than in a facility for men. It is necessary to consider how someone feels about their own personal safety. These decisions must be reevaluated at least twice a year in light of new information, such as abuse incidents, changes in a person’s appearance, or changes in their medical condition. Determining whether a transgender inmate will be safer housed with men or women when detained should be done on a case-by-case basis, taking into account the inmate’s own safety concerns.

(This article is authored by Aireena Dini Izzatty Samsul Anuar and co-authored by Dr. Nabeel Althabhawi and does not necessarily represent the view of Solidaritas)