MHA Asks States For Care, Rehabilitation of Transgender Prisoners

The Ministry of Home Affairs (MHA) has directed all the states and Union Territories (UTs) to ensure the treatment and care of transgender persons in prisons.

Keeping in view the need for ensuring the safety of transgender persons and to protect them against any form of exploitation in the context of prisons and correctional facilities, the Ministry has suggested all state and UT Prison authorities that a transgender person shall have the right to be recognized as such, in accordance with the provisions of the Transgender Persons (Protection of Rights) Act, 2019.

It is also directed that a person recognized as a transgender person under the provisions of the Transgender Persons (Protection of Rights) Act, 2019 shall have a right to self-perceived gender identity.

The MHA’s direction was circulated through written communication sent on Monday to all the chief secretaries and administrators of all states and Union Territories, Director General and Inspector General (Prisons) of all states and UTs.

In the order, there was a specific focus on appropriate arrangements for providing suitable accommodation and facilities in accordance with the gender identity of the transgender in the prisons.

A separate enclosure or ward for transgender inmates for transmen and transwomen is directed to be ensured and also such enclosures should be separate from male and female wards or enclosures.

However, while making provision for a separate enclosure for transgender prisoners, the Ministry emphasised due care by the prison authorities that “this may not result in their complete isolation or propagate social stigma among such prisoners”.

“There should also be adequate preservation of the right to privacy and dignity in regard to separate toilets for transmen and transwomen as well as shower facilities,” read the order.

As per the Ministry’s direction, “self-identity of transgender persons must be respected at all times in regard to admission procedures, medical examination, search, lodging, clothing, requisitioning of police escorts, treatment and care inside prisons”.

The prison department is suggested to facilitate the process of acquiring the transgender identity certificate under the provisions of The Transgender Persons (Protection of Rights) Act, 2019 if such a request is made by the person concerned by registering them on the Online National Portal for Transgender Persons to avail welfare measures.

The Ministry advised that the prison admission register should be suitably revised to include ‘transgender’ as a category other than male and female gender.

“Similar provision may also be made in the Prison Management System in maintaining electronic records of the prisons. In case the Court Warrant does not mention the self-identified gender of the person or if the gender mentioned is disputed by the person, the Superintendent may, with the assistance of legal services authorities, assist the person to make an application for change in gender identity,” the order mentions.

The order also mentions that the search of a transgender person should be conducted by a person of their preferred gender or by a trained medical professional or a para-medic with necessary training on conducting the search.

The person conducting the search must ensure the safety, privacy and dignity of the person being searched, reads the order, adding “at the stage where the search procedure requires stripping, it must be done in a private room or partition”.

The search procedure should be confined to compliance with security protocols and restriction of contraband and should not be aimed at determining the gender of the person.”

Transgender prisoners shall enjoy the same standards of health care available to other inmates and should have access to necessary health-care services without discrimination on the grounds of their gender identity, reads the order.

“If in-house expertise of health professionals does not exist to assess and or provide appropriate care, the transgenders may be referred to doctors or professionals who specialize in this area of health care.”

The Ministry also focused that “every prisoner shall be allowed reasonable facilities of meeting or communicating with their family members (natal or chosen) relatives, friends and legal advisers for the preparation of appeal or for procuring bail or for arranging the management of their property and family affairs”.

“They shall be allowed to have interviews with their family members, relatives, friends and legal advisers,” it said.

It is further directed for aftercare planning by the probation, welfare and rehabilitation officer to include and affirm families of choice of the transgender person and their specific health needs with regard to their mental health and gender affirmative processes over and above the scope of rehabilitation, aftercare and welfare of prisoners.

“Training modules should be devised in collaboration with Ministry of Social Justice and

Empowerment, prison training institutes, state health department, human rights commission, Legal Services Authorities and with representatives from transgender communities, for developing an understanding of gender identity, gender dysphoria, Human Rights, sexual orientation and legal frameworks for transgender persons; training of medical officers on the standards of care for transgender persons, transgender person’s right to decide their self-identified gender and designing public and Prisoner awareness programs on the rights of transgender persons,” it added.

In the last, the order states that the state and UT authorities should suitably brief and sensitize the prison officials about all the directions and take appropriate action for the protection of the rights of transgender prisoners and their welfare.

The Centre’s move comes as per powers conferred under ‘The Transgender Persons (Protection of Rights) Act, 2019.

The Transgender Persons (Protection of Rights) Act, 2019 provides for recognition of the identity of transgender persons, the prohibition against discrimination, and welfare measures to be taken by the government.

In exercise of the powers conferred under the Act, the government notified the Transgender Persons (Protection of Rights) Rules, 2020 on September 25, 2020. These rules specify the procedure by which a transgender person can obtain a certificate of identity, welfare measures for transgender persons, their education, social security, health, and provisions for non-discrimination. (ANI)

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