TRANSGENDER PRISONERS - LOST IDENTITY INSIDE PRISONS.

TERM PAPER

Submitted To Rajiv Gandhi National University of Law, Punjab

In Partial Completion of the Requirements of the B.A.L.L.B (Hons.)

SUPERVISED BY: SUBMITTED BY:

Dr. Gagan Preet Anchla Kumari

Assistant Professor of Law B.A.L.L.B (Hons.): 9th Semester

RGNUL, Punjab Roll No.: 18056

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB

2022

1
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB PATIALA-147001

(Established under the Punjab Act No. 12 of 2006)

Dr. Gagan Preet Date: 8/11/2022

Assistant Professor of Law Place: Patiala

Rajiv Gandhi National University of Law, Punjab

SUPERVISOR’S CERTIFICATE

This is to certify that the Term Paper Entitled: ― Transgender Prisoners- Lost Identity inside
Prisons submitted to Rajiv Gandhi National University of Law, Punjab, in partial fulfilment of
the requirements for B.A.L.L.B (Hons.), Five-year Integrated Course, Ninth Semester, is an
original and bonafide research work carried out by Ms. Anchla Kumari under my supervision
and guidance. It is further certified that no part of this study has been submitted to any University
for the award of any Degree or Diploma whatsoever.

2
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB PATIALA-147001

(Established under the Punjab Act No. 12 of 2006)

CANDIDATE’S CERTIFICATE

I, the undersigned, hereby solemnly declare that the Term Paper Entitled: ― Transgender
Prisoners- Lost Identity inside Prisons submitted to Rajiv Gandhi National University of Law,
Punjab, in partial fulfilment of the requirements of the B.A.L.L.B (Hons.), Five-year Integrated
Course, Ninth Semester, is an original and bonafide research work of mine. I hope that this work
will be helpful in enhancing the knowledge of readers and framing of the policies in the future
course. All the information declared hereby is true to best of my knowledge.

Anchla Kumari

B.A.L.L.B (Hons.): 9th Semester

Roll No.: 18056

Criminal Laws Specialization

3
 ACKNOWLEDGMENTS

On the completion of this project, I would like to place on record my sincere gratitude towards
all those people who have been instrumental in its making.

Firstly, I would like to thank my worthy supervisor, Dr. Gagan Preet, Assistant Professor of Law
at Rajiv Gandhi National University of Law, for all his support and encouragement without
which the completion of this project could not have been possible. .

I would like to thank the library staff at Rajiv Gandhi National University of Law for helping me
find the relevant books on the subject matter of this paper.

Anchla Kumari

ROLL NO.: 18056

NINTH SEMESTER

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 STATEMENT OF THE PROBLEM

Despite the fact that transgender persons are more visible in prisons, research indicates that they
are at a higher risk of sexual violence than regular convicts. According to research, transgender
prisoners face harassment as well as physical and sexual assault from fellow inmates and prison
staff who lack transgender-specific health information. There are no systematic evaluations of
transgender people's experiences in prison. Transgender is an inclusive term for people whose
gender identity and expression differ from the conventions and expectations linked with their sex
at birth. Individuals who have had gender reassignment surgery, individuals who have had
gender-related medical procedures other than surgery (e.g., hormone therapy), and individuals
who identify as having no gender, many genders, or alternative genders are all considered
transgender. Transgender people can identify as Transgender, Female, Male, Transwoman or
Transman, Transsexual, Hijra, Kathoey, Waria, or any of a number of other transgender
identities, and they can express their genders in a variety Of Masculine, Feminine, Androgynous,
Androgynous, Androgynous, Androgynous, Androgynous, Androgynous, Androgynous,
Androgynous, Androgy.

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 AIMS AND OBJECTIVE

Aim of the study is to critically analyze the plight of transgender prisoners languishing in jail in
India and to examine the legal issues and the challenges accompanying it.

RESEARCH OBJECTIVES

1. To study the meaning and concept of the LGBTQ+. We break down a few basic terms
and concepts. These are just some of the many terms that are used to define sexual
orientation, as well as gender identity and expression.
2. To study the procedure which is adopted for safeguarding rights of Transgender Persons
in Indian Prisons?
3. To study the existing legal framework around central legislation regulating the
administration of prisons.
4. To study the issues and challenges in the practice of separates prisoners into the
categories of women, young offenders, under trials, convicts, civil prisoners, detenues
and high-security prisoners.
5. To provide suggestions so as to fill the lacunas and deal with the legal issues and that
challenges the validity of the legislation but also result in a kind of torture and degrading
treatment being inflicted upon Trans people inside prisons.

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 SCOPE OF STUDY

1. To synthesize the best available qualitative evidence regarding the views and experiences
LGBTQ+ people in prisons and their legal rights.
2. To identify much needed legal interventions and supports of LGBTQ+ people in prisons;
3. To highlight areas of good practice regarding meeting the legal right to their identity as
individuals of LGBTQ+ community in prisons

RESEARCH METHODOLOGY

The present work was based upon the doctrinal method of research. The primary sources of
material were the existing laws, rules, doctrine, and theories etc, on various provisions relating to
Transgender Persons (Protection of Rights) Act, 2019 in India. Apart from the above, due
importance has been given to the legislation in India, decisions of the Supreme Court and various
High Courts to the research problems.

The whole study was based upon the secondary source available in the library, text books,
journal, articles, and case laws, Jurist opinions, reports of various commissions and committees,
etc. all the existing data was analyzed to reach to the conclusion. Hence the approach of the
study was analytical one.

The research methodology used in the Project is secondary, qualitative, descriptive and
analytical. The researcher has made use of internet sources, for referring to various reports,
guidelines, legislations, regulations, articles, case laws, news items etc. from various
jurisdictions that have been cited throughout the Project.

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 RESEARCH QUESTIONS

1. What is the international position concerning LGBTQ prisoners?

2. What is the Indian perspective on LGBTQ plights?

3. International case study and how India adopted provisions related to LGBTQ rights in
prison?

4. Colonial legacy- What changes are required in Prison Act/ Legislation?

8
 LIMITATION OF RESEARCH

The research project was limited due to several reasons. The most critical was the very limited
research in this area available internationally, or nationally of which findings were even more
scant in relation to prison staff as compared to transgender and gender-diverse prisoners. Only
data from two countries were represented, which limits the generalizability of findings to other
contexts. All studies had very small numbers of participants which makes generalization
problematic. Further, views from and regarding transgender men were particularly limited across
the studies – which in part may reflect demographic characteristics within prisons as well as less
definitive or clear categorization (as evidenced by reports from other prisoners and staff
members, lack of clarity around gender identity and sexual orientation as related, but distinct
constructs; or simply “systematic error” in measurement of gender as binary; Valcore & Pfeffer,
2018). Inclusion criteria solely regarding published literature may limit understanding of possible
existing data within the gray literature and other databases not searched. Further limitations
include missed studies published in non-English languages or not cited in searched databases.

The included studies took a qualitative approach and addressed the diverse experiences and
perceptions of LGBTQ+ people incarcerated in prison. Studies that did not specifically focus on
the inmate experience or address the review's objectives were excluded.

In majority of cases, studies start when researchers identify gaps in the literature and try to
address them. However, the identification or understanding that there is a gap depends on the
researchers’ level of access to the existing literature. What may seem as a research gap might be
a huge misconception simply because the person did not have access to a larger range of
scientific literature. Thus, access to literature was also a limitation in my research. I faced
problems identifying proper literature review or theoretical background for the topic of my
research.

Since my data is based on secondary data, I paid extra care to the age of the data. Making current
assumptions based on old data represents strong limitation. Though the studies are recent, they

9
are not able to persuade me to form a concrete opinion. Lack of previous studies in my chosen
area has been one of the major limitations.

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 TABLE OF CONTENT

INTRODUCTION

1. HISTORICAL PERSPECTIVE, MEANING………………………………………..…..13

1.1 What Does the Full LGBTQIA+ Acronym Stand For?...............................................13
1.2 The original initialism: LGBT……………………………………………...………..13
1.3 Why did the original term change?..............................................................................13
1.4 Have you ever wondered what the "Q" in LGBTQ stands for?...................................14
2. LGBTQ definitions………………………………………………………………………14
2.1 Why it matters?............................................................................................................16
3. RELIGIOUS APPROACH………………………………………………………………18
3.1 A SYSTEMATIC REVIEW OF THE RELATIONSHIP BETWEEN RELIGION
AND HMOSEXUALS…………………………………………………………….18
3.2 A Hindu Approach to LGBT Rights…………………………………………………18
4. COLONIALISM AND LGBTQ RIGHTS IN INDIA…………………………………...20
5. TRANSGENDERS IN PRISONS……………………………………………………….22
5.1 TACKLING TRANSPHOBIA IN THE INDIAN PRISONS……………………….22
5.2 Kiran-e-dastan (Memoirs of Kiran)………………………………………………….22
5.2.1 Search Protocol
5.2.2 Health
5.2.3 Confinement
5.2.4 Right to Self Identity
5.2.5 Unequal Justice and Fractured Legal Aid
5.2.6 States’ Responses
6. CRIMINALIZATION OF MISGENDERED PERSON………………………………...25
6.1 The Origins of "Sodomy" Laws…………………………………………………….25
7. INTERNATIONAL PRINCIPAL AND INDIA PRISON RULE BOOK………………27
7.1 YOGYAKARTA PRINCIPLE PLUS 10(YP10)……………………………………29

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 7.2 UN Standard Minimum Rule for Treatment of the Prisoners- Nelson Mandela Rules
7.3 The Nelson Mandela Rules………………………………………………………….30
7.3.1 'Mandela Rules' Relating to Solitary Confinement (selection)
7.3.2 Rule 43
7.3.3 Rule 44
7.3.4 Rule 45
7.3.5 Rule 46
8. CASE LAWS…………………………………………………………………………….33
8.1 National legal services authority vs. UOI 2014
8.2 2. Navtej Singh Johar vs. UOI 2018
9. THE PLIGHT OF TRANSGENDER IN GLOBAL PRISON SYSTEM………………34
9.1 UK
9.2 AUSTRALIA
10. KEY TAKEAWAYS FROM UNION HOME MINISTRY ADVISORY………………35

CONCLUSION………………………………………………………………………......38

BIBLIOGRAPHY……………………………………………………………….............40

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 INTRODUCTION

People in the LGBTQ community have various ways of expressing themselves. Some people
would prefer the umbrella term "queer," which can refer to any non-cisgender, non-heterosexual
identity, or the initialisms "LGBT" and "LGBTQ+." Each term has a particular significance, and
they each have a long history that spans decades. It is crucial to comprehend the meanings of
each letter in order to be inclusionary of the various identities that assemble and identify the
LGBTQ community.

1.1 What Does the Full LGBTQIA+ Acronym Stand For?1

The LGBTQIA+ acronym is used to describe either a person`s sexual orientation or gender
identity. Gender identity describes a person`s internal sense of being female, male, or someone
outside of that gender binary.

As the world becomes more inclusive of people`s sexual orientation and gender identity, the
letters within the LGBTQIA+ acronym have similarly evolved. Using appropriate terminology
and naming is important in ensuring accurate and inclusive representation of people`s diverse
identities. It’s important to note that gender identity is not determined by one’s sex assigned at
birth and that sex and gender are not the same.2 The acronym is used to denote different
sexualities and gender identities, referring to anyone who is transgender and/or of the
same/similar sex.

1.2 The Original Initialism: LGBT

The year 1969 is often seen as a turning point in American history regarding sexuality. The
Stonewall Riots were a pivotal time for the "gay rights movement". In the 1980s, the LGBT
acronym gained popularity and was adopted by many activist organizations.

1
Kevin Le, PharmD, BCPS, BCPPS, ‘What Does the Full LGBTQIA+ Acronym Stand For?’, Reviewed by Alyssa
Billingsley, PharmD (GoodRx, October 19, 2022) <https://www.goodrx.com/health-topic/lgbtq/meaning-of-lgbtqia>
accessed 11 November 2022
2
Kevin Le, PharmD, BCPS, BCPPS, ‘What Does the Full LGBTQIA+ Acronym Stand For?’, Reviewed by Alyssa
Billingsley, PharmD (GoodRx, October 19, 2022) <https://www.goodrx.com/health-topic/lgbtq/meaning-of-lgbtqia>
accessed 11 November 2022

13
1.3 Why did the original term change?

In the 50s and 60s, gay and lesbian were predominately used until the '90s when bisexual and
transgender was added to the acronym. LGBT was originally conceived as a more acceptable
way to describe all the individuals that were previously referred to as the "gay community". And
yet, this acronym was leaving various sexual orientations and gender groups out.

1.4 Have you ever wondered what the "Q" in LGBTQ stands for?

Here are some terms you should be familiar with, based on resources from the American
Psychological Association; NLGJA: The Association of LGBTQ Journalists; National Center for
Transgender Equality.

2. LGBTQ definitions3
4
1. Ally | A person who is not LGBTQ but shows support for LGBTQ people and promotes
equality in a variety of ways.
2. Androgynous | Identifying and/or presenting as neither distinguishably masculine nor
feminine.
3. Asexual | The lack of a sexual attraction or desire for other people.
4. Bisexual | A person emotionally, romantically or sexually attracted to more than one sex,
gender or gender identity though not necessarily simultaneously, in the same way or to
the same degree.
5. Cisgender | A term used to describe a person whose gender identity aligns with those
typically associated with the sex assigned to them at birth.
6. Gay | A person who is emotionally, romantically or sexually attracted to members of the
same gender.
7. Gender dysphoria | Clinically significant distress caused when a person's assigned birth
gender is not the same as the one with which they identify. According to the American
Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM),

3
‘ Glossary of Terms’, Produced by the HRC Foundation <https://www.hrc.org/resources/glossary-of-terms>
accessed 2 November 2022
4
Vivien Chan and Jennifer Derenne (eds), Transition-Age Youth Mental Health Care (Springer International
Publishing 2021) XXXX <http://dx.doi.org/10.1007/978-3-030-62113-1> accessed 5 November 2022

14
 the term - which replaces Gender Identity Disorder - "is intended to better characterize
the experiences of affected children, adolescents, and adults."
8. Gender-expansive | Conveys a wider, more flexible range of gender identity and/or
expression than typically associated with the binary gender system.
9. Gender expression | External appearance of one's gender identity, usually expressed
through behaviour, clothing, haircut or voice, and which may or may not conform to
socially defined behaviours and characteristics typically associated with being either
masculine or feminine.
10. Gender-fluid | According to the Oxford English Dictionary, a person who does not
identify with a single fixed gender; of or relating to a person having or expressing a fluid
or unfixed gender identity.
11. Gender identity | One’s innermost concept of self as male, female, a blend of both or
neither – how individuals perceive themselves and what they call themselves. One's
gender identity can be the same or different from their sex assigned at birth.
12. Gender non-conforming | A broad term referring to people who do not behave in a way
that conforms to the traditional expectations of their gender, or whose gender expression
does not fit neatly into a category.
13. Genderqueer | Genderqueer people typically reject notions of static categories of gender
and embrace a fluidity of gender identity and often, though not always, sexual
orientation. People who identify as "genderqueer" may see themselves as being both male
and female, neither male nor female or as falling completely outside these categories.
14. Gender transition | The process by which some people strive to more closely align their
internal knowledge of gender with its outward appearance. Some people socially
transition, whereby they might begin dressing, using names and pronouns and/or be
socially recognized as another gender. Others undergo physical transitions in which they
modify their bodies through medical interventions.
15. Gender X Gender X refers to Colorado law allowing for intersex individuals to have birth
certificates issued as "X" rather than male or female.
16. Intersex | An umbrella term used to describe a wide range of natural bodily variations. In
some cases, these traits are visible at birth, and in others, they are not apparent until
puberty. Some chromosomal variations of this type may not be physically apparent at all.

15
 17. Lesbian | A woman who is emotionally, romantically or sexually attracted to other
women.
18. LGBTQ | An acronym for “lesbian, gay, bisexual, transgender and queer.”
19. Non-binary | An adjective describing a person who does not identify exclusively as a man
or a woman. Non-binary people may identify as being both a man and a woman,
somewhere in between, or as falling completely outside these categories. While many
also identify as transgender, not all non-binary people do.
20. Pansexual | Describes someone who has the potential for emotional, romantic or sexual
attraction to people of any gender though not necessarily simultaneously, in the same way
or to the same degree.
21. Queer | A term people often use to express fluid identities and orientations. Often used
interchangeably with "LGBTQ."
22. Questioning | A term used to describe people who are in the process of exploring their
sexual orientation or gender identity.
23. Same-gender loving | A term some prefer to use instead of lesbian, gay or bisexual to
express attraction to and love of people of the same gender.
24. Sex assigned at birth | The sex (male or female) given to a child at birth, most often based
on the child's external anatomy. This is also referred to as "assigned sex at birth."
25. Sexual orientation | An inherent or immutable enduring emotional, romantic or sexual
attraction to other people.
26. Transgender | An umbrella term for people whose gender identity and/or expression is
different from cultural expectations based on the sex they were assigned at birth. Being
transgender does not imply any specific sexual orientation. Therefore, transgender people
may identify as straight, gay, lesbian, bisexual, etc.
27. Transphobia | The fear and hatred of, or discomfort with, transgender people. 5

2.1 Why it matters?

The LGBTQ+ acronym serves a crucial objective: not only is it intended to become more
inclusionary, but also it reflects the self-identities of transgender and/or similar gender attracted
people.

5
Vivien Chan and Jennifer Derenne (eds), Transition-Age Youth Mental Health Care (Springer International
Publishing 2021) XXXX <http://dx.doi.org/10.1007/978-3-030-62113-1> accessed 5 November 2022

16
 1. Inclusivity
The acronym is meant to be an all-encompassing approach to acknowledge various gender
identities and sexual orientations. The addition of other identities to the LGBT acronym also
helps to recognise and connect them to a larger group.

It also implies that these persons are more likely to be recognised by society as a whole. Rather
than being erased, ignored, or rejected, acknowledgement can help minority identities become
more visible.

2. Visibility
Visibility can also help create a greater sense of self-affirmation of a person's identity. Research
has found that offering inclusive and affirmative environments is important for LGBTQ+ youth. 6

Research also suggests that despite safety concerns, being visible as a member of the LGBTQ+
community can be an important way to feel a sense of pride in individual identity. 7

Affirming self-identity can help people feel greater self-esteem, self-worth, and boost overall
mental well-being. This can be particularly important since representation has long been lacking
in mainstream media.

The good news is that there have been improvements made in recent years to change this. A
recent GLAAD report suggests that the representation of LGBTQ characters and relationships on
television is higher than ever previously seen on TV. 8

This includes greater diversity and visibility of non-binary identities, although the report notes
that BIPOC characters are still underrepresented.

6
Hadland SE, Yehia BR, Makadon HJ, 'Caring for Lesbian, Gay, Bisexual, Transgender, and Questioning Youth in
Inclusive and Affirmative Environments'
<https://www.sciencedirect.com/science/article/abs/pii/S0031395516410539?via%3Dihub> accessed 2 November
2022
7
Higa D, Hoppe MJ, Lindhorst T, ‘Negative and Positive Factors Associated With the Well-Being of Lesbian, Gay,
Bisexual, Transgender, Queer, and Questioning (LGBTQ) Youth’ , 13 June 2012)
<https://journals.sagepub.com/doi/10.1177/0044118X12449630> accessed 2 November 2022
8
Ellis SK, ‘GLAAD. Where are we on TV report -
2019.’<https://www.glaad.org/sites/default/files/GLAAD%20WHERE%20WE%20ARE%20ON%20TV%202019%
202020.pdf> accessed 2 November 2022

17
Research and statistics suggest that LGBTQ+ youth have an increased risk of a range of mental
health and social issues, often due to or exacerbated by isolation, marginalization, and
discrimination based on their orientation or identity. 9

3. RELIGIOUS APPROACH

3.1 A SYSTEMATIC REVIEW OF THE RELATIONSHIP BETWEEN RELIGION AND

HOMOSEXUALS.

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3.2 A Hindu Approach to LGBT Rights

While the equal religio-spiritual potential of all individuals is key to understanding a Hindu basis
for dignity for LGBT persons, so too is the way in which Hindu religious texts and teachings are
approached. There are two different sets of Hindu religious texts:
11
(i) the Sruti, which are scriptures like the Vedas and Upanishads that are believed to
enunciate eternal truths; and
(ii) (ii) the Smriti, which are books like the Manu Smriti and Yagnavalkya Smriti that detail
socio-religious laws and customs bound by time, place, and circumstance. Smritis, by
their very nature, are time bound and subject to change, and such bifurcation between
eternal truths and socio-religious customs underpins to LGBT rights.

Hindu Sruti texts don’t address sexual orientation at all or indeed social issues in general. They
state that every being is an eternal soul, or atman, incarnate, and that the ultimate goal of life is
moksha, or freedom from the cycle of birth and death. Moksha is attained by one’s real self, or
atman, which is distinct from one’s physical body and personality (ego), as well as outer
attributes such as race, caste, gender, and sexual orientation.

9
Higa D, Hoppe MJ, Lindhorst T, ‘Negative and Positive Factors Associated With the Well-Being of Lesbian, Gay,
Bisexual, Transgender, Queer, and Questioning (LGBTQ) Youth’ , 13 June 2012)
<https://journals.sagepub.com/doi/10.1177/0044118X12449630> accessed 2 November 2022
10
‘HAF Policy Brief: Hindu Teachings Inclusive of LGBT People - Hindu American Foundation’ (Hindu American
Foundation, 16 June 2016) <www.hinduamerican.org/press/haf-policy-brief-hindu-teachings-inclusive-lgbt-people>
accessed 5 November 2022.
11
‘HAF Policy Brief: Hindu Teachings Inclusive of LGBT People - Hindu American Foundation’ (Hindu American
Foundation, 16 June 2016) <www.hinduamerican.org/press/haf-policy-brief-hindu-teachings-inclusive-lgbt-people>
accessed 5 November 2022.

18
Progress towards moksha comes through yogic spiritual practices (selfless service, loving
devotion of God, simple living, prayer and meditation, etc.), and its attainment implies, amongst
other things, completely transcending material desires and impulses, including sexual ones. To
put it provocatively, an LGBT person who lives selflessly and has mastered his or her impulses
(sexual or otherwise) is actually closer to moksha than a non-LGBT person who is a slave to
desires. Thus, Hindus cannot point to anything in the Sruti texts that supports treating LGBT
persons as being inferior to non-LGBT persons, let alone supports their persecution.

The smritis, some of which are socio-religious codes from particular eras in Hindu history have
imbibed the perspective of the srutis and have never advocated broad-based, harsh punishments
for homosexuality. Professor Arvind Sharma, a Hindu academic 12 at McGill University in
Montreal, Canada, states in his essay on Homosexuality and Hinduism: “It appears from the
foregoing account that, save for the emphasis on renunciation, Hinduism is a sex-positive
religion in relation to all the other…ends of human life….”

The Manusmriti, which has come under considerable criticism from many quarters for its
regressive pronouncements on caste, does express mild opposition to homosexuality, but
prescribes such quixotic punishments as bathing in public with one’s clothes on. 13 The most
stringent punishment, that of cutting off two fingers (or shaving the head and riding a donkey), is
prescribed for an older woman who has a relationship with a young virgin. 14 But the concern
here is on virginity, not homosexuality. The exact same punishment of cutting off two fingers
(plus a fine of 600 panas of gold) is prescribed for a man who violates a virgin woman just a few
verses earlier 15. Notably, there is also no such punishment in the case of two older women. Prof.
Arvind Sharma also points out that if traditional Balinese culture is taken to represent an older
and at least a trans-Indian form of Hinduism, the Hindu attitude to homosexuality is one of mild
amusement bordering on indifference. 16

12
Homosexuality and World Religions (Trinity Press International 1993)
13
Manu Smriti Chapter 11, verse 175.
14
Manu Smriti Chapter 8, verse 370.
15
Manu Smriti Chapter 8, verse 367.
16
Traditional Balinese Culture, edited by Belo Jane, Columbia University Press, 1970

19
17
The Hindu epics such as the Mahabharata mention several characters who demonstrate a range
of sexual orientations and gender identities, including Shikhandi, Chitrangada (wife of Arjuna
and mother of Babruvahana), and Brihannala. None of these characters are discriminated against
because of sexual orientation or gender identity. Rather, they are all treated with respect, and
judged by their abilities rather than their sexuality. Several other ancient works such as the
Arthashastra (a treatise on politics and economics) and the Kama sutra have numerous mentions
of LGBT individuals in various professions free from any persecution. And stories such as Lord
Ayyappa (born to Shiva and Vishnu as Mohini) indicate the mystical and subtle approach that
Hinduism adopts towards matters of gender in varying contexts.

Thus, not only do the srutis lay absolutely no bar on moksha for LGBT persons, the codes of
conduct of ancient India as well as other smriti texts seem to have largely ignored the LGBT
phenomenon, rather than persecute them; or positively focused on their abilities, rather than their
sexuality or gender.18

19
4. COLONIALISM AND LGBTQ RIGHTS IN INDIA

Because Hinduism originated in India and the overwhelming majority of the world’s Hindus live
there, Indian law is often seen as a barometer of Hinduism’s attitude towards LGBT rights. This
would however be misleading. 20Section 377 of the Indian penal code, which punishes sexual
conduct “against the order of nature” with up to life imprisonment, is a British colonial-era law
dating from 1860.

Section 377 is a direct product of Victorian social mores. A Human Rights Watch (HRW) report
titled “This Alien Legacy” 21describes how laws in over three dozen countries, from India to
Uganda and Nigeria to Papua New Guinea, derive from a single law on homosexual conduct that

17
‘HAF Policy Brief: Hindu Teachings Inclusive of LGBT People - Hindu American Foundation’ (Hindu American
Foundation, 16 June 2016) <www.hinduamerican.org/press/haf-policy-brief-hindu-teachings-inclusive-lgbt-people>
accessed 5 November 2022.
18
‘HAF Policy Brief: Hindu Teachings Inclusive of LGBT People - Hindu American Foundation’ (Hindu American
Foundation, 16 June 2016) <www.hinduamerican.org/press/haf-policy-brief-hindu-teachings-inclusive-lgbt-people>
accessed 3 November 2022.
19
‘HAF Policy Brief: Hindu Teachings Inclusive of LGBT People - Hindu American Foundation’ (Hindu American
Foundation, 16 June 2016) <www.hinduamerican.org/press/haf-policy-brief-hindu-teachings-inclusive-lgbt-people>
accessed 5 November 2022.
20
Jennifer Ung Loh, ‘Transgender Identity, Sexual versus Gender ‘Rights’ and the Tools of the Indian State’ (2018)
119(1) Feminist Review 39, XXXX <http://dx.doi.org/10.1057/s41305-018-0124-9> accessed 5 November 2022.
21
Kuga Thas AM, “Chapter 12. Troubling Malaysia’s Islamic State Identity: The ‘Young’ Struggle of LGBTQ’s
Narratives and the Art of Mis-Representation” [2018] Illusions of Democracy 221

20
the British colonial rulers imposed on India in 1860. The report demonstrates that British saw
conquered cultures as morally lax on sexuality. British viceroy Lord Elgin warned that British
soldiers could succumb to “replicas of Sodom and Gomorrah” as they acquired the “special
Oriental vices.”
22
“Colonial legislators and jurists introduced such laws with no debates or cultural consultations,
to support colonial control,” the report says. “They believed laws could inculcate European
morality into resistant masses. They brought in the legislation, in fact, because they thought
‘native’ cultures did not punish ‘perverse’ sex enough. The colonized needed compulsory re-
education in sexual mores. Imperial rulers held that, as long as they sweltered through the
promiscuous proximities of settler societies, ‘native’ viciousness and ‘white’ virtue had to be
segregated: the latter praised and protected, the former policed and kept subjected.”

Section 377 unfortunately continues to be on the statute books seven decades after Indian
independence, and even in 2013, the Indian Supreme Court reversed an earlier Delhi High Court
decision that had held section 377 to be unconstitutional, on the grounds that this is a matter for
the people and their elected representatives, not the courts.

23
British leaders of the Victorian era acted against homosexual conduct based on their
understanding of the famous Biblical story of Sodom and Gomorrah6 or the book of Leviticus7
holding that homosexuals were, simply by virtue of that conduct, denied entry into heaven.
Moreover, according to the HRW report, notions of polluting sex from which sodomy laws were
derived, “traced to an old strain of Christian theology that held sexual pleasure itself to be
contaminating, tolerable only to the degree that it furthered reproduction (specifically, of
Christians).”24

22
Gustavo Gomes da Costa Santos and Matthew Waites, ‘Comparative colonialisms for queer analysis: comparing
British and Portuguese colonial legacies for same-sex sexualities and gender diversity in Africa – setting a
transnational research agenda’ (2019) 29(2) International Review of Sociology 297, XXXX
<http://dx.doi.org/10.1080/03906701.2019.1641277> accessed 5 November 2022.
23
‘HAF Policy Brief: Hindu Teachings Inclusive of LGBT People - Hindu American Foundation’ (Hindu American
Foundation, 16 June 2016) <www.hinduamerican.org/press/haf-policy-brief-hindu-teachings-inclusive-lgbt-people>
accessed 5 November 2022.
24
‘HAF Policy Brief: Hindu Teachings Inclusive of LGBT People - Hindu American Foundation’ (Hindu American
Foundation, 16 June 2016) <www.hinduamerican.org/press/haf-policy-brief-hindu-teachings-inclusive-lgbt-people>
accessed 3 November 2022.

21
 5. TRANSGENDERS IN PRISONS

Transgender prisoners are ten times more likely to be sexually assaulted by fellow inmates and
staff than their non-transgender counterparts, according to the Bureau of Prisons. They are also
more likely to face given to those in detention. On 13th January 2022, the Home Ministry
directed the prison in central and state government to create separate enclosures or wards and
earmark separate toilets and showers facilities for Tran’s men and women. The law provides for
recognition of the identity of transgender persons, prohibition against discrimination, and
including them in education, health, and social-security facilities as well as other welfare
measures of the government. 2020 report by the national crime record bureau stated that there are
70 transgender prisoners in jail across the country.

5.1 TACKLING TRANSPHOBIA IN THE INDIAN PRISONS

The advisory was issued in light of The Transgender Person (Protection of Rights) Act, 2019.

The invisibility of transgender persons in Indian prisons is mirrored in the lack of data
maintained by the prison system. The national crime record bureau’s prison statics 2019
continues to report data on prisoners only within the male-female binary. There is a lack of
uniformity in records of data by jail within the state due to unclear definition of “transgender
person” mostly recorded as “eunuch” in their e- prison software.

5.2 Kiran-e-dastan (Memoirs of Kiran)

25
“Six A4 size notebooks bear witness to the 17 months Kiran Gawli spent in Nagpur Central
prison. Each day, Kiran would unfailingly steal a few moments to note down the day’s events –
of newly forged friendships, anguish, loneliness and sometimes heartbreak. Some days the words
would flow like poetry; on other days, just a few raw, angry lines. The diary – titled Kiran-e-

25
Sukanya Shantha, ‘Misgendering, Sexual Violence, Harassment: What it Is to Be a Transgender Person in an
Indian Prison’ [2022] Pulitzer Center XXXX <https://pulitzercenter.org/stories/misgendering-sexual-violence-
harassment-what-it-be-transgender-person-indian-prison> accessed 5 November 2022.

22
dastan (loosely translates to the memoirs of Kiran) – has words etched on each line and
page…”26

27
“Each time we went with our complaints and demanded to be shifted out to the women’s
section, the prison head would tell us there was no such provision available in the prison rule.
But under what rule were we being stuffed in the male prison and violated every day?”

“I was in utter shock. How could they even imagine that a woman could survive unscathed
inside the male prison? Why did they not ask me if I preferred being among the women
prisoners?”

The question posed by Kiran is not rhetorical. Indian courts have repeatedly ruled that
transgender people are entitled to government recognition on their own terms, without force and
violence or discrimination.

5.2.1 Search Protocol

When Kiran was taken to Nagpur prison, she says right at the entrance of the Badi (large) prison
gate, the process of violating their bodily integrity had begun. As soon as they had walked in,
two male constables had asked them to undress. “We were herded together like sheep. (We were)
asked for our names, caste and occupation and then told to strip.” The arrestees had unanimously
refused. “There was no way I was going to allow any man to strip me,” Kiran says.

“That is when I actually understood what it means to submit your body to the state,” 28

5.2.2 Health

26
Sukanya Shantha, ‘Misgendering, Sexual Violence, Harassment: What it Is to Be a Transgender Person in an
Indian Prison’ (The Wire, 21 February 2021) <https://thewire.in/lgbtqia/transgender-prisoners-india> accessed 3
November 2022.
27
Sukanya Shantha, ‘Misgendering, Sexual Violence, Harassment: What it Is to Be a Transgender Person in an
Indian Prison’ [2022] Pulitzer Center XXXX <https://pulitzercenter.org/stories/misgendering-sexual-violence-
harassment-what-it-be-transgender-person-indian-prison> accessed 5 November 2022.
28
Sukanya Shantha, ‘Misgendering, Sexual Violence, Harassment: What it Is to Be a Transgender Person in an
Indian Prison’ (The Wire, 21 February 2021) <https://thewire.in/lgbtqia/transgender-prisoners-india> accessed 3
November 2022.

23
In jail, the transwomen were placed in a “separate ward” assigned only to those suffering from
infectious diseases like tuberculosis, leprosy, scabies and HIV. The prisoners here are
neglected, and so is the barrack. Kiran says they would be in a constant fear of getting
infected.

Once when Uttam fell seriously ill, she was allegedly asked to remove her clothes and show
which “part” of the abdomen was exactly hurting. When two others were in urgent need of
hormone replacement therapy (HRT), the permission was simply denied. One of them who
had undergone a breast augmentation surgery just month before her arrest had developed an
infection in her silicone implant. The prison doctor only administered her painkillers without
a proper diagnosis.

5.2.3 Confinement

Contrary to the actual treatment meted out to them, Kiran says, the prison administration
believes that it gives them “special attention” by restricting their movement and access. They
would be kept confined to a tiny room most of the time and chided if they talked to any male
counterparts – all in the name of “security”. But when it came to bathing and daily ablution,
they were forced to carry them out in the common space. “We would somehow manage to
save ourselves through the day but during the bathing hour, hell would break loose. We went
without a bath for several days just to protect ourselves,” Kiran shares. Here, the experience
was “inexplicable”, Dolly adds.

5.2.4. Right to Self Identity

Unlike other under trial prisoners, all arrested transwomen were denied their right to wear
civil clothes and were forced to wear white striped shirt and white shorts. “Even
undergarments were denied to us,” Dolly says.

5.2.5 Unequal Justice and Fractured Legal Aid

Kiran and her friends were rather fortunate to be represented by a lawyer, and an efficient one
at that. While dealing with assaults and harassment in jail, transgender persons are also faced

24
with poor legal representation. It is very common for transgender persons to languish for
years in prison before any sort of legal help is made available to them

29
Article 39 A of the Indian constitution provides for free legal aid to the poor and weaker
sections of the society; Article 14 and 22 (1) make it obligatory for 30the state to ensure
equality before law and a legal system which promotes justice on the basis of equal
opportunity to all.

“Jail is the place where you are acutely made aware of your transness”

5.2.6 States’ Responses

The Indian judiciary has addressed issues concerning inmates' rights on occasion. However, it is
done in a more general manner, with minimal focus on the unique needs of the LGBTQI+
groups, particularly transgender people in custody. The Indian parliament passed the
Transgender Persons (Protection of Rights) Act in November 2019, despite objections from trans
rights campaigners. The Act imposes legal gender recognition and requires an individual to ask
for a "transgender certificate" from the district magistrate where they live, in clear contravention
of court judgements and fundamental rights. In this context, a transgender person who enters jail
without a magisterial certificate is at the mercy of prison officials and physicians who must
"recognise" and "certify" them based on their genitals.

6. CRIMINALIZATION OF MISGENDERED PERSON

6.1 The Origins of "Sodomy" Laws

The colonial legacy of law criminalized queer, particularly the hijra community. The colonial
Prisons Act has become obsolete and it fails to be the touchstone of constitutional morality
which ushers for a pluralistic and inclusive society. Since constitutional morality is something
that has to be cultivated keeping in mind the evolving nature of the law and the rights of the

29
Keshabananda Borah, ‘A Critical Introspection on the Enjoyment of Legal Rights by Women Undertrial Prisoners
in Central Jails of Assam’ (2021) 28(2) Indian Journal of Gender Studies 248, XXXX
<http://dx.doi.org/10.1177/0971521521997965> accessed 5 November 2022.
30
Keshabananda Borah, ‘A Critical Introspection on the Enjoyment of Legal Rights by Women Undertrial Prisoners
in Central Jails of Assam’ (2021) 28(2) Indian Journal of Gender Studies 248, XXXX
<http://dx.doi.org/10.1177/0971521521997965> accessed 5 November 2022.

25
people, the present law falls short of any such progressive realization of the rights of sexual
minorities.

The criminal tribe act, of 1871 of communities that were assigned criminal upon birth, and
compulsory registration of all eunuchs.

In 2008, a case stood unresolved before India's High Court, calling for reading down Section 377
of the Indian Penal Code. That provision, almost 150 years old, punishes 31"carnal intercourse
against the order of nature with any man, woman or animal" with imprisonment up to life. 32 This
law, understood to criminalize consensual homosexual conduct, allows the state to invade the
lives and intimacies of millions of adult Indians.

Five years earlier in the long-running case, India's Ministry of Home Affairs had submitted an
affidavit supporting Section 377. It said: " 33The law does not run separately from society. It only
reflects the perception of the society…. When Section 377 was brought under the statute as an
act of criminality, it responded to the values and mores of the time in the Indian society." The
ministry claimed that, by comparison to the United Kingdom and the United States of America,
"Objectively speaking, there is no such tolerance to [the] practice of homosexuality/lesbianism in
the Indian society."34

This was sheer amnesia. Section 377, at its origin, did not respond to Indian society or its "values
or mores" at all. British colonial governors imposed it on India undemocratically. It reflected

31
Yuvraj Joshi, ‘The Case for Repeal of India's Sodomy Law’ (2010) 33(2) South Asia: Journal of South Asian
Studies 304, XXXX <http://dx.doi.org/10.1080/00856401.2010.493283> accessed 5 November 2022.
32
As explained, most law derived from British colonialism makes no distinction between homosexual acts
committed with or without consent, or between homosexual acts committed by adults as opposed to adults' abuse of
children. Therefore, the petition aims to "read down" rather than strike down the law. It asks the Court to state that
consensual homosexual acts between adults are no longer criminal under the provision, while leaving intact Section
377's application to non-consensual acts and to children-until India passes a modern, gender-neutral rape law, and
provides express legal protection for male children against sexual abuse.
33
Yuvraj Joshi, ‘The Case for Repeal of India's Sodomy Law’ (2010) 33(2) South Asia: Journal of South Asian
Studies 304, XXXX <http://dx.doi.org/10.1080/00856401.2010.493283> accessed 5 November 2022.
34
High Court of Delhi, Naz Foundation v. Govt. Of N.C.T. of Delhi and Others (Special Leave Petition No. 7217-
7218 of 2005), Counter affidavit on behalf of respondent no. 5,
<http://www.lawyerscollective.org/files/Counter%20Affidavit%20%5BGovernment%20of%20India%5D%5B3%5
D.pdf> accessed August 15, 2008.

26
only "the British Judeo-Christian values of the time," as the petitioners in the case told the court
in reply. 35

7. INTERNATIONAL PRINCIPAL AND INDIA PRISON RULE BOOK

More than 80 countries around the world still criminalize consensual homosexual conduct
between adult men, and often between adult women. 36

These laws invade privacy and create inequality. They relegate people to inferior status because
of how they look or who they love. They degrade people's dignity by declaring their most
intimate feelings "unnatural" or illegal. They can be used to discredit enemies and destroy
careers and lives. They promote violence and give it impunity. They hand police and others the
power to arrest, blackmail, and abuse. They drive people underground to live in invisibility and
fear.37

More than half those countries have these laws because they once were British colonies.

This report describes the strange afterlife of a colonial legacy. It will tell how one British law-the
version of Section 377 the colonizers introduced into the Indian Penal Code in 1860-spread
across immense tracts of the British Empire.

35
High Court of Delhi, Naz Foundation v. Govt. Of N.C.T. of Delhi and Others (SLP No. 7217-7218 of 2005),
Rejoinder to Government of India,
<http://www.lawyerscollective.org/files/Rejoinder%20to%20Government%20of%20India[9].pdf> accessed
November 4, 2008.
See also Sumit Baudh, "Human Rights and the Criminalisation of Consensual Same-Sex Sexual Acts in the
Commonwealth, South and Southeast Asia," a working paper of the South and Southeast Asia Resource Center on
Sexuality, May 2008.
36
An exact number is hard to calculate. Almost none of these laws mention "homosexuality" (a term only coined in
1869) or homosexual acts; the terminology differs between legal systems and (as the discussion of the original
meanings of "sodomy" in Chapter II below shows) is sometimes difficult to interpret. For instance, Egypt is often
excused from lists because its law punishes the "habitual practice of debauchery [fujur]," even though domestic
jurisprudence since the 1970s has established that this term refers to consensual sex between men. The best
reference work on the subject is Daniel Ottosson, State-Sponsored Homophobia: A World Survey of Laws
Prohibiting Same-Sex Activity Between Consenting Adults, an International Gay and Lesbian Association (ILGA)
report, <http://www.ilga.org/statehomophobia/ILGA_State_Sponsored_Homophobia_2008.pdf> accessed August 1,
2008.
37
The principle that criminalizing consensual same-sex sexual conduct violates basic human rights was laid down
by the UN Human Rights Committee-which interprets and monitors compliance with the International Covenant on
Civil and Political Rights (ICCPR)-in the 1994 case of Toonen v. Australia. The Committee found that sexual
orientation is a status protected against discrimination under articles 2 and 26 of the ICCPR.

27
Individuals who identify as LGBTQ+ and are incarcerated face numerous additional challenges.
Once in prison, there is systemic discrimination against imprisoned LGBTQ+ people, as well as
a lack of understanding and concern for their care, treatment, and support needs. While there is
growing interest in their protection and that of other vulnerable populations in prison settings,
little is known about their perspectives and experiences regarding their distinct psychosocial
needs. The goal of this systematic review is to critically evaluate and synthesise existing research
evidence relating to the unique psychological and social experiences of LGBTQ+ people in
prison, as well as to identify factors that may help or hinder access to appropriate psychosocial
interventions and supports.

It is now well established that LGBTQ+ people experience a higher prevalence of mental ill-
health than the general population, with poorer mental health outcomes. 38 For transgender people
specifically, this relates to higher levels of depression, suicidality, interpersonal trauma,
substance use disorders and general distress. 39 Amongst the factors of concern are institutional
stigma buoyed by pervasive myths and stereotypes about the population. For example, research
has shown that the discrimination, alienation and victimization that LGBTQ+ people can
experience in general society is often mirrored and intensified in the prison environment 40.

However, this stigma can also inform institutional culture and behaviour toward inmates and
may reinforce lack of agency amongst prison staff regarding how to work and support this
population. The United Nations Office on Drugs and Crime (UNODC) 41 has added to research
by recognizing issues of heteronormativity, homophobia and transphobia both within and outside
prison. Within prison specifically is the threat of physical and sexual violence, institutional
discrimination and neglect, unmet health needs and social isolation. Despite the

38
EH Mereish and VP Poteat, ‘A relational model of sexual minority mental and physical health: The negative
effects of shame on relationships, loneliness, and health’ [2015] Journal of Counselling Psychology
<https://pubmed.ncbi.nlm.nih.gov/26010289/#affiliation-1> accessed 4 November 2022.
39
Panteá Farvid and others, ‘The health and wellbeing of transgender and gender non‐conforming people of colour
in the United States: A systematic literature search and review’ [2021] Journal of Community & Applied Social
Psychology XXXX <http://dx.doi.org/10.1002/casp.2555> accessed 4 November 2022.
40
B Brockmann and others, ‘Emerging Best Practices for the Management and Treatment of Incarcerated Lesbian,
Gay, Bisexual, Transgender, and Intersex (LGBTI) Individuals.’ [2018] Emerging Best Practices for the
Management and Treatment of Incarcerated Lesbian." Gay, Bisexual, Transgender, and Intersex (LGBTI)
Individuals. XXXX
<https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1035&amp;context=fasch_rpt> accessed 4
November 2022.
41
United Nations Office on Drugs and Crime. Handbook on Prisoners with Special Needs. United Nations Office on
Drugs and Crime; Vienna, Austria: 2009.

28
decriminalization of homosexuality across most regions, the historical legacy of incarceration
amongst this population has not diminished. There are strong indications that LGBTQ+ people
are still more likely to become involved in the criminal justice system than the heterosexual or
cisgender community42.

LGBTQ+ people are overrepresented in the criminal justice system. Despite this, their distinct
physical, psychological, and social needs remain hidden or ignored. Sexual orientation, sexual
and gender identity are terms that have only recently received attention in criminal justice
systems and the experiences of LGBTQ+ people while incarcerated. Because of the threat of
transphobia, homophobia, and biphobia, LGBTQ+ people may choose not to disclose their
gender identity or sexual orientation while in prison for a variety of reasons. Many people feel
discriminated against, stigmatised, and threatened, and they may face physical or sexual violence
or abuse. The process of 'coming out,' 'being out,' and ‘staying out' was difficult and highly
dependent on context and 'audience.'

7.1 YOGYAKARTA PRINCIPLE PLUS 10(YP10)

Different humanitarian and development professionals must be familiar with the Yogyakarta
Principles since they give legal support for the equality of persons of all sexual orientations,
gender identities and expressions, and sex characteristics. A supplement to the original
"Yogyakarta Principles," known as "The Yogyakarta Principles Plus 10," it describes
international human rights legislation as it relates to sexual orientation, gender expression,
gender identity, and sex characteristics. The "Yogyakarta Principles Plus 10" update 12 of the
original 29 principles by adding nine new ones and ten more state requirements. The document
begins with an introduction to the "Yogyakarta Principles" and explains the need for new
principles and state obligations in light of significant advancements in international human rights
law and a better understanding of the experiences of people with a variety of sexual orientations,
gender identities, and sex preferences. The prologue clarifies and defines important terms,
recognises the multidimensional nature of discrimination, and acknowledges the distinct
experiences of people with various gender and sexual identities, gender expression, and sex

42
K Majd, J Marksamer and C Reyes, ‘Hidden injustice: Lesbian, Gay, Bisexual and Transgender Youth in Juvenile
Courts. Legal Services for Children, National Juvenile Defender Center, and National Center for Lesbian Rights.’
[2009]

29
characteristics. The preamble also emphasises that the principles will require ongoing updating
to stay current because they are a reflection of the current state of international human rights law.

The YP+10 document is an affirmation of existing International Legal Standards as they apply to
all persons on the basis of their sexual orientation, gender identity, gender expression, and sex
characteristics. These principles are both a legal obligation and a part of Worldwide Human
Rights.

The nine new principles are then covered in the paper. The main points of each new principle are
discussed in relation to how it pertains to the elimination of discrimination based on sex, gender
identity, gender expression, and sexual orientation. There is also a list of the requirements that
states must pass in order to uphold the principle. Following that is a detailed list of the new state
requirements, which amend 12 of the original "Yogyakarta Principles." The document then
acknowledges the contribution of non-state actors to the realisation of human rights and makes
recommendations for national human rights institutions and sporting organisations on how to
best apply "The Yogyakarta Principles Plus 10" and the original "Yogyakarta Principles" to their
work.

Since the Yogyakarta Principles were adopted in 2006, they have developed into an authoritative
statement of the human rights of persons of diverse sexual orientations and gender
identities43.Jogyakata Principle 9 relates to the right to a humane treatment while in detention.
Amongst the obligations emphasized, is the importance of independent monitoring of detention
facilities by the State in the areas of sexual orientation and gender identity. The National Institute
of Corrections in the USA (2015) undertook a substantive review of constitutional law,
recommending the development and implementation of LGBT-affirmative policies44.

7.2 UN Standard Minimum Rule for Treatment of the Prisoners- Nelson Mandela Rules

7.3 The Nelson Mandela Rules

43
‘Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation
and Gender Identity’ (2009) 9(2) Asia-Pacific Journal on Human Rights and the Law 86, XXXX
<http://dx.doi.org/10.1163/157181509789025200> accessed 4 November 2022.
44
‘National Institute of Corrections in the USA. U.S. Department of Justice National Institute of Corrections
National Institute of Corrections; Washington, DC, USA: 2015.’ (2015) 2nd Edition National Institute of
Corrections in the USA. U.S. Department of Justice National Institute of Corrections National Institute of
Corrections; Washington, DC, USA: 2015.

30
The 122 Rules describe the basic requirements for the treatment of all inmates, whether those
who have been found guilty or not guilty. They include every area of prison administration. The
UN's Bangkok Rules on women prisoners constitute a supplement to them.

The Rules provide guidelines for managing prisons in all areas, from entrance and classification
to the outlawing of torture and solitary confinement restrictions. There contains advice on
medical care, hiring and training prison employees, and disciplinary measures. A summary of the
Rules can be found in PRI's Short Guide to the Rules.

To honour the memory of the late president of South Africa, "who spent 27 years in jail in the
course of his battle for worldwide human rights, equality, democracy and the development of a
culture of peace," the Rules are referred to as the "Nelson Mandela Rules." The updated Rules
were unanimously approved by the UN General Assembly on December 17, 2015 (UN-Doc
A/Res/70/175)

The revision focussed on nine thematic areas including:

1. Prison health care;

2. Restrictions, discipline and sanctions;
3. Restraints;
4. Cell searches;
5. Contact with the outside world;
6. Prisoner complaints, and;
7. Investigations and inspections.

The use of solitary confinement and other forms of discipline were among the most significant
revisions. Solitary confinement is defined precisely for the first time, and its application is
subject to stringent regulations.

7.3.1 'Mandela Rules' Relating to Solitary Confinement (selection)

45
7.3.2 Rule 43

45
McCall-Smith K, “United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela
Rules)” (2016) 55 International Legal Materials 1180

31
1. In no circumstances may restrictions or disciplinary sanctions amount to torture or other cruel,
inhuman or degrading treatment or punishment. The following practices, in particular, shall be
prohibited:

46
(a) Indefinite solitary confinement;

(b) Prolonged solitary confinement;

(c) Placement of a prisoner in a dark or constantly lit cell;

(d) Corporal punishment or the reduction of a prisoner’s diet or drinking water;

(e) Collective punishment.

2. Instruments of restraint shall never be applied as a sanction for disciplinary offences.

3. Disciplinary sanctions or restrictive measures shall not include the prohibition of family
contact. The means of family contact may only be restricted for a limited time period and as
strictly required for the maintenance of security and order.

7.3.3 Rule 44

For the purpose of these rules, solitary confinement shall refer to the confinement of prisoners
for 22 hours or more a day without meaningful human contact. Prolonged solitary confinement
shall refer to solitary confinement for a time period in excess of 15 consecutive days.

7.3.4 47Rule 45

1. Solitary confinement shall be used only in exceptional cases as a last resort, for as short a time
as possible and subject to independent review, and only pursuant to the authorization by a
competent authority. It shall not be imposed by virtue of a prisoner’s sentence.

2. The imposition of solitary confinement should be prohibited in the case of prisoners with
mental or physical disabilities when their conditions would be exacerbated by such measures.
The prohibition of the use of solitary confinement and similar measures in cases involving

46
McCall-Smith K, “United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela
Rules)” (2016) 55 International Legal Materials 1180
47
McCall-Smith K, “United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela
Rules)” (2016) 55 International Legal Materials 1180

32
women and children, as referred to in other United Nations standards and norms in crime
prevention and criminal justice, continues to apply.

7.3.5 Rule 46

1. Health-care personnel shall not have any role in the imposition of disciplinary sanctions or
other restrictive measures. They shall, however, pay particular attention to the health of prisoners
held under any form of involuntary separation, including by visiting such prisoners on a daily
basis and providing prompt medical assistance and treatment at the request of such prisoners or
prison staff.

2. Health-care personnel shall report to the director, without delay, any adverse effect of
disciplinary sanctions or other restrictive measures on the physical or mental health of a prisoner
subjected to such sanctions or measures and shall advise the director if they consider it necessary
to terminate or alter them for physical or mental health reasons.

3. Health-care personnel shall have the authority to review and recommend changes to the
involuntary separation of a prisoner in order to ensure that such separation does not exacerbate
the medical condition or mental or physical disability of the prisoner.

8. CASE LAWS
8.1 National legal services authority vs. UOI 2014

The SC declared transgender people to be a 'third gender'. The NALSA judgment, while
extending constitutional protection to Trans persons under Articles 14, 15, and 21, directs states
to make policies on their legal and socio-economic rights. This extends to Trans prisoners as
well, since prisons and their administration is a state subjects. Even though the directions given
in the NALSA judgment constitute the law of the land, there is still a requirement to bring forth
changes in the present laws. It also settled the question of an individual’s right to gender self-
determination. Ruling that transgender people should be recognized as a third gender and enjoy
all fundamental rights, Justice K.S. Radhakrishnan, on behalf of the bench, wrote: “Transgender
persons’ right to decide their self-identified gender is also upheld and the centre and state
governments are directed to grant legal recognition of their gender identity such as male, female
or as the third gender.”

33
 8.2 Navtej Singh Johar vs. UOI 2018

In its judgment of 2018, the Supreme Court, embracing sexuality as an integral part of
citizenship, observed, “The overarching ideals of individual autonomy and liberty, equality for
all sans discrimination of any kind, recognition of identity with dignity and privacy of human
beings constitute the cardinal four corners of our monumental Constitution forming the concrete
substratum of our fundamental rights that has eluded certain sections of our society who are still
living in the bondage of dogmatic social norms, prejudiced notions, rigid stereotypes, parochial
mindset, and bigoted perceptions.” Such findings, laying special emphasis on personal
autonomy, were further affirmed both by the Supreme Court and the high court in several other
rulings. The decision relied on the concept of transformative constitutionalism, which paved the
way for a slew of important legislative modifications and reformations. It is a watershed moment
in the country's history because it not only recognises the identity of individuals in the LGBT
community, but also grants them global acceptability by society. Following this relief through a
landmark decision, the next battle in the legal arena would be for social and economic provisions
for such individuals, including the freedom to marry someone of the same sex or anybody of
their choosing.

The judgments upheld the dignity of the transgender community and granted them the status of a
third gender that was previously criminalized.

9. THE PLIGHT OF TRANSGENDER IN GLOBAL PRISON SYSTEM

A transsexual person is someone who lives or proposes to live in the gender opposite to the one
assigned at birth. The gender in which the transsexual person lives or proposes to live is known
as that person’s acquired gender. 48 Moreover, the term transsexual has a precise medical
definition and is reserved for people who desire to, or who actually do ‘transition’ to the
opposite sex, by undergoing sexual reassignment surgery. 49

48
Rebecca Mann, ‘The Treatment of Transgender Prisoners, Not Just an American Problem-A Comparative
Analysis of American, Australian, and Canadian Prison Policies Concerning the Treatment of Transgender Prisoners
and a ‘Universal’ Recommendation to Improve Treatment’ (2006) 15 Law and Sexuality: A Review of Lesbian,
Gay, Bisexual, and Transgender Legal Issues’ WORLD PROFESSIONAL ASSOCIATION FOR TRANSGENDER
HEALTH <www.wpath.org/Document2/socv6.pdf> accessed 4 November 2022.
49
David Barrett, ‘Sex swap prisoners get right to bras and make-up, The Telegraph’ [2011] The Telegraph
<www.telegraph.co.uk/news/uknews/law-and-order/8363244/Sex-swap-prisoners-get-right-to-bras-and-make-
up.html> accessed 4 November 2022.

34
When kept with the general population, this community is not the only outcast behind prison
walls in the entire world. Within the confines of the prison, transgender people frequently
experience violence and abuse. The guards commit acts of violence more frequently than the
prisoners do. Sexual abuse is the most common form of this kind of abuse.

For the simple reason that the transgender community is marginalised and occasionally shunned,
the issues and problems surrounding transgender inmates have not gained much traction. They
flourish everywhere in dreadful darkness. If they raise their voices, they are silenced; they are
underrepresented.

The behaviour of the guards, authorities, and inmates continues to pose problems for transgender
people no matter how developed the country is. This also applies to their deteriorating health
conditions while they are incarcerated. The genders of transgender people have also been
acquired, sometimes through surgery or hormone therapy.

Consider what it would be like to keep male and female prisoners together if a transgender
person with feminine characteristics was forcibly placed in a male ward. Analysis of their sexual
identities, issues they face in the global prison system and pertinent legal frameworks are all
goals of this essay.

9.1 UK

A detailed new policy document drawn up by Kenneth Clarke’s Ministry of Justice in 2011
requires jail warders to address inmates by courtesy titles such as Mister, must call transsexual
prisoners “Miss” or “Ms” under the new mandatory guidelines. The 20-page guidebook, issued
to prison governors remarked that “An establishment must permit prisoners who consider
themselves transsexual and wish to begin gender reassignment to live permanently in their
acquired gender 50.

9.2.AUSTRALIA

Australian Human Rights Commission Act 1986 prohibits discrimination on grounds of sex.
Similarly, there is a gamut of other laws such as Victoria Equal Opportunity Act 1995, Western

50
David Barrett, ‘Sex swap prisoners get right to bras and make-up, The Telegraph’ [2011] The Telegraph
<www.telegraph.co.uk/news/uknews/law-and-order/8363244/Sex-swap-prisoners-get-right-to-bras-and-make-
up.html> accessed 4 November 2022.

35
Australia Equal Opportunity Act 1984, Sex Discrimination Act 1984, at all which secures the
rights of different sexes. Despite these, a lingering concern remains which is the management of
trans genders in prisons. They are denied required treatment at times, sometimes are subjected to
prison violence.

What they can wear, the personal items they are permitted to purchase, the way in which they are
searched, and the name by which they are referred to by staff and in official prison records do
not show a bright picture though. At times, self-harms are also afflicted by them.

10. KEY TAKEAWAYS FROM UNION HOME MINISTRY ADVISORY.

The Home Ministry said the self-identity of transgender persons must be respected at all times
while conducting admission procedures, medical examination, frisking, clothing, requisitioning
of a police escort, treatment, and care inside prisons. The Home Ministry asked prisons to
facilitate the process of acquiring the transgender identity certificate under the transgender
person law if such a request is made. It also stressed that ‘transgender’ should be included as a
category in the prison register as well as electronic records. In case a court warrant does not
mention the self-identified gender of the inmate, the prison superintendent must make changes in
the document with the help of legal services authorities, the advisory said.

Infrastructure in prison- Separate enclosures or wards and separate toilets and shower facilities
for transmen and transwomen to preserve the right to privacy and dignity of the inmates.

Right To Dignity: Respect Self-Identity-Separate enclosures or wards and separate toilets and
shower facilities for transmen and transwomen to preserve the right to privacy and dignity of the
inmates. Prisons to facilitate the process of acquiring the transgender identity certificate under
the transgender person law if such a request is made.

Search Protocol- The Home Ministry advisory also said frisking of a transgender person may be
conducted by a person of their preferred gender or by a trained medical professional and the
person searching much ensure the safety, dignity, and privacy of the inmate. Searches should be
carried out by a person of their preferred gender or by a trained medical professional or a

36
paramedic trained in conducting searches. The person searching must ensure the safety, privacy,
and dignity of the person being searched.

Admission in Prison-The prison admission register may be suitably revised to include

“transgender” as a category other than male and female gender. A similar provision may be made
in the Prison Management System in maintaining electronic records.

Access To Healthcare- Prison authorities has further been asked to provide healthcare facilities
and meetings with family, and legal advisers on par with other prisoners. Transgender inmates
should have an equal right to healthcare, without any discrimination on grounds of their gender
identity.

Training and Sensitisation of Prison Personnel-They must be allowed an opportunity to

interact with their family members, relatives, friends, and legal advisers and after-care planning
by probation, welfare, or rehabilitation officers. They must be allowed an opportunity to interact
with their family members, relatives, friends, and legal advisers and after-care planning by
probation, welfare, or rehabilitation officers.

Shelter Home for Transgender Persons- They must be allowed an opportunity to interact with
their family members, relatives, friends, and legal advisers and after-care planning by probation,
welfare, or rehabilitation officers.

Awareness and Documentation-They must be allowed an opportunity to interact with their

family members, relatives, friends, and legal advisers and after-care planning by probation,
welfare, or rehabilitation officers.

Prison Act and Trans Person- The Prisons Act, however, allows the prison authorities to follow
procedures that are strictly gender-binary. These procedures not only challenge the validity of the
legislation but also result in a kind of torture and degrading treatment being inflicted upon Trans
people inside prisons. All of this is substantiated by a report titled “Lost Identity: Transgender
Persons inside Indian Prisons” by the Commonwealth Human Rights Initiative (CHRI). This
report sheds light on issues faced by Transgender persons confined in Indian prisons. They must
be allowed an opportunity to interact with their family members, relatives, friends, and legal

37
advisers and after-care planning by probation, welfare, or rehabilitation officers. They must be
allowed an opportunity to interact with their family members, relatives, friends, and legal
advisers and after-care planning by probation, welfare, or rehabilitation officers.

CONCLUSION

Prisons in India are yet to come up with a standard operating procedure for dealing with
transgender persons in detention. The community has been neglected by the state prison
administration. Prison staff is being sensitized about the communities' rights and requirements.
The old approach of placing an inmate in segregation simply does not work anymore. There is
also the issue of managing them, protecting them, and professionally interacting with them. And
there are attitudes held by both corrections officers and other inmates that can increase conflict.
When discussing sex and gender identity, it is important to use the correct (and most up-to-date)
terminology. LGBTQ is an umbrella acronym for lesbian, gay, bisexual, transgender, and queer
(or in some formulations, questioning). Some people prefer the extended LGBTQIA, which
stands for intersex, asexual, and questioning.

One might be curious about the types of issues that every transgender person faces while
incarcerated after reading through the cases of the various prison systems around the world.
(Although there are only a few, they demonstrate the community's dire situation.) The same
issues are greatly exacerbated in each of these regions of the world. The "similar" issues include
the prejudice they encounter in prison wards if they are housed with other genders, the sexual
abuse that results from it, the denial of medical care to them, the refusal to give them appropriate
clothing, the poor attitude of the prison administration towards them, legal underrepresentation,
etc. These are the "general" issues, not the unique ones. The inmates each have unique,
challenging issues. The fact that these people have only recently decided on their sexual
orientation and have every right to behave with grace and dignity should be recognised. It is a
good idea for India to establish special prisons for these. This also calls for an overhaul of the
criminal justice system. For their personal growth, it is fundamental. If we have prisoner rights

38
for both men and women, why not for the "hijras," as we call them?, is a psychological question
that needs to be addressed.

In conclusion, this research project suggests several recommendations to improve the current
situation in prison including better processing and increased documentation, spreading
awareness, and creation of better training programs for the prison administration. The report was
finalized through a consultative process with individuals and experts, including representatives
from the community, community-based organizations as well as researchers, and academicians
working on this issue.

39
 BIBLIOGRAPHY

CASE LAWS

1. National Legal Services Authority v. Union of India, Supreme Court of India, 15

April 2014, Writ Petition (civil) No. 604 of 2013, AIR (India)
<https://indiankanoon.org/doc/193543132/> accessed 5 November 2022
2. Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and
Justice, Supreme Court of India, 6 September 2018, 94348, AIR, 10 SCC 1 (India)
<https://indiankanoon.org/doc/168671544/> accessed 5 November 2022

BOOKS

Chan V and Derenne J (eds), Transition-Age Youth Mental Health Care (Springer International
Publishing 2021) <http://dx.doi.org/10.1007/978-3-030-62113-1> accessed 5 November 2022

McCall-Smith K, “United Nations Standard Minimum Rules for the Treatment of Prisoners
(Nelson Mandela Rules)” (2016) 55 International Legal Materials 1180

REFERENCES

1. Homosexuality and World Religions (Trinity Press International 1993)

2. Shantha S, ‘Misgendering, Sexual Violence, Harassment: What it Is to Be a Transgender
Person in an Indian Prison’ (The Wire, 21 February 2021)
<https://thewire.in/lgbtqia/transgender-prisoners-india> accessed 3 November 2022
3. Mereish E and Poteat V, ‘A relational model of sexual minority mental and physical
health: The negative effects of shame on relationships, loneliness, and health’ [2015]
Journal of Counselling Psychology
<https://pubmed.ncbi.nlm.nih.gov/26010289/#affiliation-1> accessed 4 November 2022
4. ‘HAF Policy Brief: Hindu Teachings Inclusive of LGBT People - Hindu American
Foundation’ (Hindu American Foundation, 16 June 2016)

40
 <www.hinduamerican.org/press/haf-policy-brief-hindu-teachings-inclusive-lgbt-people>
accessed 3 November 2022
5. Farvid P and others, ‘The health and wellbeing of transgender and gender
non‐conforming people of colour in the United States: A systematic literature search and
review’ [2021] Journal of Community & Applied Social Psychology
<http://dx.doi.org/10.1002/casp.2555> accessed 4 November 2022
6. Brockmann B and others, ‘Emerging Best Practices for the Management and Treatment
of Incarcerated Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) Individuals.’
[2018] Emerging Best Practices for the Management and Treatment of Incarcerated
Lesbian." Gay, Bisexual, Transgender, and Intersex (LGBTI) Individuals.
<https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1035&amp;conte
xt=fasch_rpt> accessed 4 November 2022
7. ‘Yogyakarta Principles on the Application of International Human Rights Law in relation
to Sexual Orientation and Gender Identity’ (2009) 9(2) Asia-Pacific Journal on Human
Rights and the Law 86 <http://dx.doi.org/10.1163/157181509789025200> accessed 4
November 2022
8. Mann R, ‘The Treatment of Transgender Prisoners, Not Just an American Problem-A
Comparative Analysis of American, Australian, and Canadian Prison Policies Concerning
the Treatment of Transgender Prisoners and a ‘Universal’ Recommendation to Improve
Treatment’ (2006) 15 Law and Sexuality: A Review of Lesbian, Gay, Bisexual, and
Transgender Legal Issues’ WORLD PROFESSIONAL ASSOCIATION FOR
TRANSGENDER HEALTH <www.wpath.org/Document2/socv6.pdf> accessed 4
November 2022

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