LGBT people in prison

Lesbian, gay, bisexual and transgender people in prisons often face additional challenges as inmates to those of straight, cisgender inmates.

According to Just Detention International, 67% of all LGBT people report being assaulted while in prison, and LGBT inmates are "among the most vulnerable in the prison population."^[1] The vulnerability of incarcerated LGBT individuals has led some facilities to provide protective accommodation for such people, while in other facilities 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.^[2]

Coming out

Many LGBT inmates who are able, even those who are openly gay outside of prison, carefully hide their sexual identities while imprisoned, because inmates who are known or perceived as gay, especially lesbians and gay men with stereotypically effeminate or butch characteristics, face "a very high risk of sexual abuse."^[3]

Conjugal visits

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.

Conjugal visits are customary in most countries.^[4] 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]}

Same-sex conjugal visitation by country

Argentina

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)."^[5]

Australia

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.^[6] Conjugal visits of any type are not allowed in New South Wales, Queensland, South Australia, Tasmania, Western Australia and the Northern Territory.

Belgium

Same-sex conjugal visits, for a maximum of two hours per month, are permitted for both men and women.^[7]

Brazil

Same-sex conjugal visits are permitted for all inmates.^[8]

Canada

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.^[9]

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.^[10]

Colombia

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 Interamerican Commission of 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.^[11][12]

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.^[11][13]

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. http://latindispatch.com/2011/10/13/conjugal-visits-for-gay-couples-legalized-in-costa-rica/

Mexico

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.^[14]

Russia

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 became the only US state to permit same-sex conjugal visits when it enacted a same-sex conjugal visit policy 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 domestic partners who are not themselves incarcerated. Further, the domestic partnership must have been established before the prisoner was incarcerated.^[15]

The following countries do not permit conjugal visitation for any inmate

United Kingdom (Wales, England, Northern Ireland and Scotland), New Zealand and Ireland.

Health care

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.^[1] For example, 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.^[16]

However, on August 31, 2001, the Canadian Human Rights Tribunal concluded that Sections 30 and 31 of the Correctional Service of Canada that has sent Synthia Kavanagh, a transsexual male-to-female who has sentenced life for murder in 1989, to the institution for males and prohibited sex reassignment surgery for her despite the trial judge's recommendation, is the discrimination on the basis of sex and disability in Canadian Human Rights Act.^[17]

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.^[18] 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.^[19]

Physical and sexual abuse

According to Amnesty International, globally, LGBT prisoners and those perceived to be lesbian, gay, bisexual or transgender, are at risk of torture, ill-treatment and violence from other inmates as well as prison officials.^[2] Amnesty International cites numerous cases internationally where LGBT inmates are known to have been abused or murdered by prison officials or fellow inmates.

Gay and bisexual men are often assumed to be responsible for the preponderance of sexual assaults perpetrated in prisons. This 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."^[20] 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 groundbreaking 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."^[3]

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:^[3]

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."^[16]

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."^[2]

Segregation

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.^[3]

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.^[1]

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.^[21]

For financial or other reasons segregated housing is not always available. 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.^[21] 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.^[22] 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.^[23]

Transgender issues

Transgender prisoners are especially vulnerable in US prisons due to a general policy of housing them according to their birth 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 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.^[16]

Notes

References