Dignity is a human right in prison, too

It has been described as a “hard-hitting ruling” which has exposed certain hitherto unseen realities of prison life in Malta. But from your clients’ point of view... what is the significance of this week’s Constitutional Court judgment?

NF: In a nutshell, the Constitutional Court ruled that the treatment suffered by our clients amounted to inhumane and degrading treatment: in the way they had been allocated to the male section, and the experiences they went through there. The ruling also said that, by disclosing their gender history, the prison authorities had violated the right to privacy: because the law very clearly states that one’s gender history is private, and should not be disclosed... especially where the disclosure could lead to abuse, as in fact happened. The court also specified that their rights were violated, not simply in an abstract context... but specifically because they were transgender women. So [the human rights violation] was on the basis of discrimination...

As a result, the court awarded your clients the sum of 5,000 Euro each – 30,000 Euro in total. Before turning to the wider implications of the ruling: do you think the compensation is sufficient, given the severity of the human rights breaches?

NF: In an abstract sense, we don’t think it’s enough. But in the Maltese context, where the courts have certain parameters by which they give compensation, we’re comfortable with the amount. Our clients are still discussing with us whether they are comfortable or not, so I can’t comment on their behalf...

CC: But I think what our clients really wanted was recognition of what they had suffered. That was the fundamental issue; which they actually got, and even the fact that the government will not be appealing the verdict is an even bigger confirmation, for them, that there was a serious breach. And government has acknowledged this...

NF: [Nodding] Our clients had spent years, some of them decades, recounting their stories to the media, prison authorities, ministers, religious authorities... and constantly being either disbelieved, ignored or set aside. So finally you have an independent authority – and a very high court at that – looking at the facts as presented, and not only acknowledging their side of the story... but saying, ‘It’s true: we believe you’.... and that obviously, what happened should not have happened. The mere acknowledgement that their story was heard, and given a sense of reality... that, for them, meant a lot.

But the same ruling also exposes some apparent anomalies. For instance: the Gender Identity Bill was passed in 2016, and a policy was then drawn up for its implementation in prison. And yet, the complaints persisted even afterwards. Does this mean the policy was a failure?

NF: The case obviously comes in a much wider context. We’ve been talking to these women for a number of years, and we’ve also been talking to government to try to improve their situation: from many years before the law was passed. So even in a situation when they were unable to change their ID documents, we still insisted they should be moved to the female section. We told government: ignore the documentation, and go by their identified gender: especially their appearance. Because that, ultimately, is what was at the root of the problem... But let’s face it: it can’t be an easy problem to solve. The proposed solution was to transfer transgender inmates to the women’s section, because they ‘identify as women’. But what if the existing inmates object, on the grounds that they themselves don’t identify the newcomers as women?

NF: Dealing with transgender inmates is a problem all prison authorities face. It’s not just a Maltese problem, but a problem everywhere... because of the issues you raised, with regards to other inmates and how they might relate with transgender people; and even with regard to security officers who have to conduct body-searches, etc. There’s an evident concern that we acknowledge and appreciate.

We feel, however, that once the law acknowledges your right to identify your own gender – irrespective of your physical characteristics, but based on your inner feelings about who you really are – then the institutions need to adapt their systems to make sure your rights are fundamentally respected.

We need to underline that gender is an inherent part of your identity; you cannot give it up for the sake of an institution that you’re living in. The structures need to adapt themselves to your rights... the primary principle being your human dignity.

So, what we advocated was: move them to the female section; but obviously look into issues such as training for security officers, to make sure they’re comfortable with the situation, and can deal with it. Today there are many security officers who have received training, and who have dealt with transgender inmates, and they’re relatively comfortable with the situation. And if security situations arise vis-avis the other inmates, deal with them on a case-by-case basis.

But don’t assume there are going to be problems; and on the basis of that assumption, deny people their rights simply because of a fear you might have...

One aspect that emerges clearly from the ruling is that the degrading treatment did not come solely from other inmates, but also from prison warders; and that the refusal to confront this problem pre-2016 seems to reflect an ingrained prejudice against transgender people on the part of the prison management as a whole. How true is this perception?

NF: Again, just to give some context: the experiences our clients recounted go back many, many years. There’s a long list of complaints dating back 20 years, in some cases. Historically, the starting point would have been in the 1980s, and the end-point would be quite recently, when the case was filed. From the institution’s perspective, even once the law was adopted there still remained a level of transphobia in prison.

And I think there’s also a level of homophobia, racism, xenophobia... the prison environment does have a number of elements which are problematic for people who don’t generally conform to society. In prison, obviously, their vulnerability is exacerbated. That is why we were really keen on seeing the policy adopted after the law.

Because the policy tells prison authorities: we have a law; you need to take steps to make sure the law is respected... with regard to how people are called; what pronouns are used; what namecalling you use during the rollcall; what type of hairdresser can people use, what clothes can they wear... elements which some might think are superficial, but are really about how your gender is respected in a particular institution.

Meanwhile, those who did choose to be transferred to the female section found that they would have to lose certain rights and privileges: including having a job, and access to education. This seems to indicate that female inmates have less access to such rights and privileges than men. Is this the case?

CC: Certain jobs and training opportunities are offered to men and women separately; so the work opportunities – which are often needed to be able to buy medicine, for example – are not the same. They are ‘gendered’, in the sense that men are, for example, offered carpentry and IT-related training, while women are offered sewing, or hairdressing. The problem in the case of our clients was that once they changed section, they were not allowed to carry on the jobs and courses they were doing or following at the male section. They also realised that, once they moved to the female section, they had less time outdoors... this is something else that this judgment revealed.

Wait, does that mean that female prisoners in general get to spend less time outdoors than men?

CC: In the prison section... yes.

But isn’t that just a blatant case of gender discrimination? If so, how can it possibly justified?

CC: There is a problem. Part of it is simply that the female section is very, very small. There are far fewer female inmates; and strangely enough, in this context it becomes more difficult to accommodate smaller numbers of people. All the same, this only came to light in the first place because there were inmates who experienced both sections...

NF: Another issue that gets complained about in the female section is that, if you look at the physical structure... because it’s so much smaller, it’s dormitorybased, rather than cell-based. In the male section, there’s a mix: when you have so many more people [Note: Male/female prison population figures stand at roughly 500+ males to 50-max females] you will need different sections, depending on the crimes, the seriousness of security threats, etc. The female section is largely a dormitory: which one can understand from a logistical perspective, as it makes things easier.

But from a personal privacy perspective, spending years of your life living in a shared space, the size of this room, with other people... people you might not get along with; or you might not want to get along with... or you just might want your personal space. Bear in mind that prison does cause a certain level of mental stress and anxiety, and people do need some time alone, just for reflection, etc. That in itself is something that inmates keep complaining about. The structures are not conducive to them living a dignified, quiet life. But this goes beyond our case; and we want to emphasise that we are not an NGO specialising in conditions in prison...

No, but you do specialise in human rights; and surely, these are human rights issues...

NF: Agreed, but we don’t go to prison on a regular basis to monitor conditions. There’s a limit to how much we can comment on what’s going there today...

Fair enough: but these conditions have now been confirmed by a court ruling; and while your clients have been compensated, the actual injustice has not been independently investigated. Shouldn’t there be action taken as a result of this ruling?

NF: With human rights judgments, the way they are approached is that they are never the end of a situation: they’re generally the beginning of a process. In this case, it comes in the middle of a dialogue we’ve been having with government for many years. Some things have improved, and the court acknowledged the improvements. In fact, the court specifically ordered the director of prisons to continue the work that he (now she) has been conducting in prison.

For us, the judgment gives us the drive to tell government we need to sit down: first of all, to explore what happens, and is going to happen, to all transgender people in prison... because they’re still there. And more transgender people will be going to prison: that’s a fact.

So we need to see what needs to be done to avoid a repeat of this situation. But in the wider context, someone – if not us, another NGO or entity – needs to sit down with government to look at prison in general: the physical conditions, living conditions, employment, education... the whole idea that you’re meant to live in dignity, with a view to eventually reintegrating into society.

That, ultimately, is the aim of prison. Is it happening, or is it not? That’s what we need to be asking...

What about the perpetrators, though? We now have evidence that there were systemic human rights abuses at Corradino prison over a period of years, if not decades... shouldn’t we be talking about criminal charges against those responsible?

NF: Now you’re touching on the subject of impunity. In this case, in terms of ‘perpetrators’ there is quite a broad range of individuals and entities. Starting at ministerial level, going all the way down to the security guard level. The fact that ministries were aware of the policy that placed transgender people in the male section; and endorsed, or ordered, or enforced that policy... for us, that’s a direct line of responsibility.

You are putting an individual in a state of exposure to human rights violations. But because of the way the Maltese legal system is structured, the minister was taken out of the case, insofar as responsibility is concerned. Maltese law states that it is the director of the institution who is responsible. From a human rights perspective, we think that there needs to be more political accountability at higher levels.

The prison director was not himself taking decisions like that... there was a political context. That makes you understand how frustrated our clients are: that after so many years... yes, they have a great judgment...but as the judge himself pointed out, there is a limit to what a court ruling can do to restore your dignity and sense of worth.