Rights Wire

The Human Rights Blog of the Leitner Center for International Law and Justice


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Human rights of transgender individuals and finding hope in California’s policy for inmates to receive sex reassignment surgery

By Amaury A. Reyes-Torres

The LGBT movements in the U.S. and in Europe have taken significant steps towards legal equality and political change. However, much still remains to be done to ensure transgender rights. Many still face challenges related to their gender identity and its intersection with race, employment, equal access to accommodations and health. One such population is transgender inmates whose medical needs are often disregarded.

THE PROBLEM: MEDICAL TREATMENT FOR TRANSGENDER INMATES

Trans individuals are a vulnerable population in prisons. According to the National Center for Transgender Equality, almost one of every six trans individuals have been incarcerated at some point in their lives, and this ratio tends to increase dramatically when discussing trans black inmates. These inmates face a variety of challenges, including abuse from other prisoners and lack of adequate healthcare.

In particular, trans prisoners often lack the necessary facilities and healthcare options to make the transition to their chosen gender. Many trans people are not afforded hormone treatment or surgical procedures while incarcerated, consequently leading to or aggravating gender dysphoria, a serious medical condition often affecting trans individuals.

Gender dysphoria is “[t]he distress that may accompany the incongruence between one’s experienced or expressed gender and one’s assigned gender,” according to the American Psychiatric Association. It is “characterized by a persistent and intense distress about assigned sex, together with a desire to be, or insistence that one is, of the other sex,” according to the World Health Organization. Gender dysphoria severely affects individual well-being, and may lead to depression and even death. Appropriate treatment of this condition includes hormone treatment and sex reassignment surgery.

Many prison rules are not conducive to beginning or continuing medical treatment for gender dysphoria. Despite their medical needs, transgender inmates are often denied necessary medical services on a daily basis. Freeze frame rules, which many prisons across the country still adhere to, only allows prisoners to receive hormone therapy if they had been receiving treatment prior to incarceration. Since many trans individuals buy hormones on the black market, they are not allowed to continue their hormone therapy due to a lack of medical documentation. This leads to a physical reversal of previous therapy and exacerbation of gender dysphoria. Trans individuals are also often denied beginning hormone therapy or undergoing sex reassignment surgery while in prison.

TRANSGENDER RIGHTS AND ADEQUATE MEDICAL TREATMENT AS A RIGHT

Under international human rights law, the lack of proper medical treatment for inmates is deemed cruel, inhuman or degrading treatment. The European Court of Human Rights has held that prisoners must be detained in a condition compatible with his or her human dignity, meaning that prison conditions must ensure prisoners’ health and well-being. There must be, according to the court, compatibility between the standard of treatment and the illness faced by the prisoner. By the same token, the Inter-American Court of Human Right has held that the government is a guarantor of the health of the inmates, and must provide inmates with necessary and adequate medical treatment when it is required. According to the United Nations Standard Minimum Rules for the Treatment of Prisoners, medical services shall be provided for the sake of the physical and mental health of the inmate.

This practice clarifies the scope of article 7 of the International Covenant on Civil and Political Rights (ICCPR), which forbids cruel, inhuman or degrading treatments. The ICCPR Human Rights Committee has held that a state party has a positive duty to maintain adequate standard of health for the inmate. A state party violates article 7 of the ICCPR when it does not afford inmates appropriate medical treatment.

These human rights laws can be applied in the context of transgender inmates in the U.S. Although the U.S. is a party to the ICCPR and other relevant international documents that obligate it to protect human rights, the U.S. does not consider itself directly bound by human rights treaties, as they are not self-executing. Nonetheless, the proliferation of references to the importance of providing healthcare to prisoners in international standards as a factor in ensuring human dignity reflects a trend in the development of international law and underscores the respect for prisoner rights and transgender rights. Furthermore, both through its obligation as a state party to the ICCPR and through the eighth amendment of the U.S. Constitution, the U.S. must prohibit cruel and unusual punishment. Therefore, a denial of adequate healthcare to prisoners may violate both the ICCPR and the U.S. Constitution.

In fact, in April 2015, a federal U.S. court ordered the State of California to provide a sex surgery reassignment to Michelle-Lael B. Norsworthy, a trans female prisoner in California. Bringing a claim under Section 1983, a civil rights remedy for constitutional rights violations, Norsworthy argued that the continuous refusal of the state to provide her with appropriate healthcare, including sex reassignment surgery, violated the eighth amendment. The court agreed, and held that the state acted with deliberate indifference to the medical needs and concerns of Norsworthy as an inmate.

Not only have the courts upheld trans rights in prison, but the Department of Justice filed a statement of interest in a similar case arguing that “[f]ailure to provide individualized and appropriate medical care for inmates suffering from gender dysphoria violates the Eighth Amendment’s prohibition on cruel and unusual punishment.” The United States considers gender dysphoria to be “a serious medical need requiring appropriate treatment,” the statement said. Thus, failure to provide adequate medical services to trans prisoners, including hormone therapy and sex reassignment surgery, is a cruel and usual punishment under both the eight amendment and article 7 of the ICCPR.

TRANSGENDER RIGHTS: CALIFORNIA GUIDELINES FOR SEX REASSIGNMENT SURGERY

Despite all the barriers that trans prisoners face in attaining adequate healthcare, there has been significant progress and reason to hope for a better future. Recently, California settled a case in which the state agreed to pay for a trans inmate’s sex reassignment surgery. In the aftermath of this settlement, California Prison Officials announced guidelines under which inmates could opt for sex reassignment surgery. This is a significant breakthrough. California has become the first state to sponsor this kind of measures in favor of trans inmates. Moreover, California has one of the largest inmate populations in the United States, making this decision even more meaningful.

Under the guidelines, an inmate requesting these services will submit an application to a committee (the Headquarters Utilization Management Committee), which will then refer the inmate to a subcommittee (the Sex Reassignment Surgery Review Committee) for evaluations and findings. The subcommittee will decide whether or not there are any medical reasons that justifies withholding the surgery until they are resolved or mitigated. They will also consider whether the treatment that the inmate is currently receiving is effective. Lastly, it will decide whether or not the candidate should receive sex reassignment surgery.

This process is a significant victory for trans rights and human rights overall. Undoubtedly, there will be further questions that will need to be answered, and this system will require oversight to see if this new proceeding is effective and rights-respecting. But this practice could set an example for other U.S. states and other countries facing similar situations in which proper healthcare services are being denied to trans inmates. Most importantly, California has set an example of how it is possible to fulfill human rights obligations using domestic mechanisms.

Amaury A. Reyes-Torres is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo credit: Joseph Kranak/Creative Commons


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The case of Andrea Rosal: political prisoners and detention conditions in the Philippines

By Rodrigo Bacus

Andrea Rosal, a political prisoner arrested for her community and human rights activism in the Philippines, was finally released from prison on Sept. 7 when the Regional Trial Court dismissed all the charges brought against her due to lack of probable cause. While in prison, she was subjected to harsh prison conditions and denied medical care. Her arrest and detention were especially problematic since she was seven months pregnant at the time of her arrest and faced two months of sub-standard conditions while carrying a baby. Her arrest and treatment while in state custody highlight the terrible detention conditions and the experiences of political prisoners in the Philippines. Since her release, Rosal has expressed a strong conviction to pursue justice for herself and other political prisoners in the Philippines. The egregiousness of Rosal’s detention exemplifies why human rights activists and defenders continue to decry the Philippine government’s policy of detaining political prisoners.

RED TAGGING OF ACTIVISTS AND HUMAN RIGHTS DEFENDERS

The Philippine police and military arrested Rosal on March 27, 2014 and charged her for kidnapping and murder. News sources suggest that the real reason Rosal was arrested was because the Philippine government tagged her as a member of the New People’s Army (NPA), the armed segment of the Communist Party of the Philippines. Red tagging is the practice of publicly labeling organizations or individual human rights defenders and activists as terrorists, communists or rebels by government actors, for the most part. Rosal is the daughter of the late Gregorio “Ka Roger” Rosal, who was the spokesperson for the Communist Party of the Philippines. Rosal’s mother may have also been a member of the NPA, and left Rosal to be raised by her relatives.

Rosal chose to live a different life from her parents and became a peasant community organizer with the Pagkakaisa at Ugnayan ng mga Magsasaka sa Laguna (PUMALAG, Unity of Farmers in Laguna). PUMALAG asserts the rights of farmers to their land and defends human rights issues of farmers, in general. Laying low was the only option for Rosal, who had been kidnapped by the government when she was just 5 years old in a ploy by the government to lure her father out of hiding. The government continues to tag Rosal because of her parents, and even before her arrest, the military had been surveilling her activities. Rosal herself believes that she was arrested solely on the suspicion that she was a member of the NPA. No charges against Rosal were filed in relation to government’s suspicion of her membership with that group.

Rosal’s arrest is an example of how the Philippine government uses red tagging to target its critics. The labeling is used to justify and legitimize human rights violations against human rights activists and defenders, including abuses like extrajudicial killings and enforced disappearances. In this case, the red tagging of Rosal resulted in her detention for a year, in difficult conditions, and the loss of a life she held dear to her.

ARREST AND INHUMANE DETENTION CONDITIONS

At the time of her arrest, Rosal was seven months pregnant. She was first detained in a small and hot cell run by the National Bureau of Investigation, the police sub-unit that had arrested her. While in jail, she complained of abdominal cramps, but was just told to fill out medical forms. She was only able to see her doctor two days later, and was prescribed hospital detention along with other procedures. Her request to be transferred to hospital detention was ignored, and she was transferred to a shared cell with 24 other female detainees. The cell was about 16 by 32 feet in size, with a window that did not allow enough fresh air or sunlight to stream in. Since Rosal’s arrest was so sudden, she was not able to bring any supplements relating to her pregnancy and had to eat prison rations that consisted of rice and a boiled fish or vegetable. Although Rosal is allergic to fish, she was neither allowed to cook her own food nor provided with alternate dining options. She also had to sleep on the floor because the bunk assigned to her was too high.

Article 10(1) of the International Covenant on Civil and Political Rights guarantees that persons arrested or detained must be treated with dignity. Article 12 of the International Covenant on Economic and Social Rights protects the right to the highest standard of physical and mental health. Since the Philippines is a state party to both these conventions, the Filipino human rights group, KARAPATAN, suggests that the treatment of prisoners in general in the Philippines implicates these two provisions. In particular, the overemphasis in Philippine prisons on punitive punishment makes detainees vulnerable to inhumane treatment and conditions. The U.N. Basic Principles for the Treatment of Prisoners and the U.N. Standard Minimum Rules for the Treatment of Prisoners both detail the rights of prisoners and how prison conditions can meet acceptable international standards. The Philippines should incorporate this guidance to ensure prisoners’ rights.

For pregnant women in detention such as Rosal, the World Health Organization (WHO) suggests that even more careful treatment needs to be contemplated. The WHO recommends that women should be imprisoned only when other alternatives are unavailable, particularly in the case of pregnant women. They also recommend that prison staff undergo gender-sensitivity training on various issues, including on adequate nutrition for pregnant detainees, breastfeeding and other types of care. Finally, the WHO emphasizes the importance of individualized health care for women. The detention conditions Rosal faced run counter to such recommendations and effectively punished her as a person held in pre-trial detention.

DEATH OF A CHILD AND A MOTHER’S GRIEF

Rosal’s experiences in detention would lead to even more tragic consequences as her case dragged on and her detention continued. On May 15, 2014, the Regional Trial Court granted Rosal’s request for hospitalization so that Rosal could deliver her baby. This request had been pending since Rosal’s doctor prescribed hospital detention two days after she was arrested. While Rosal was undergoing labor contractions, the police brought Rosal back and forth between the prison and the hospital in Manila. The police claimed that there was no available room for her. The distance Rosal traveled each time was around nine miles. She was not admitted to the hospital until May 16, 2014, a day after the court granted her request. On May 17, 2014, Rosal gave birth to her daughter, Diona Andrea Rosal. The very next day, on May 18, 2014, baby Diona died due to oxygen deficiency as a result of a lung infection (pneumonia) that had caused injury to her brain while on an artificial breathing machine. Rosal held her baby for the first time after she had already died

Dr. Beng Rivera-Reyes of the Health Alliance for Democracy suggests that prison conditions and failure to provide regular pre-natal checkups may have contributed to the baby’s health condition. In a statement to the press, KARAPATAN secretary general, Cristina Palabay said that “[The Philippine government’s] blatant disregard of the rights of Andrea, including her right to receive immediate medical care and be in an environment conducive for conceiving and delivering a healthy child, are apparent in this case.”

After the tragic death of her daughter, Rosal’s request to be temporarily released to bury her child was denied due to security reasons. Baby Diona was buried without the presence of her mother.

CONTEMPLATING CHANGE IN THE PHILIPPINE JUSTICE SYSTEM

In the shadow of Rosal’s arrest and the death of her child, criticism of the Philippine jail and justice system has been mounting. Yet these abuses continue. Another woman, Maria Miradel Torres, was red tagged and arrested while she was sick and four months pregnant. A spokesman for the Bureau of Jail Management and Penology said, “Well, the BJMP facility is really not fit for pregnant women. But we are giving them the most comfortable accommodation and we send them to nearby government hospital if necessary.” Given the experience of Andrea Rosal, human rights organizations were skeptical. Similarly, Torres was sent to a female dormitory in a city jail even though a court ordered to transfer her to a hospital. She was able to deliver her baby in the past year without complications, but is now in danger of being separated from her child.

Although she had chosen a life of quiet activism, it is no surprise then that Rosal’s recent release only strengthened her conviction to continue fighting for the rights of prisoners and political prisoners in particular. Although acquitted of all charges, Rosal’s experiences in detention and the loss she had experienced amount to unjust punishments without a conviction, which is especially problematic for a person who had the right to be presumed innocent. Moreover, the Philippines continues to detain 527 political prisoners on trumped up charges. Political prisoners are targeted by the government and robbed of their right to speak out against the government and defend human rights. Other political prisoners facing the same detention conditions risk consequences similar to those of Rosal. Activists continue to call on the Philippine government to end red-tagging and counterinsurgency campaign as a tactic to undermine critical voices. They also call on the government to observe human rights laws, particularly those standards in treaties to which the Philippines is a state party, with respect to prison conditions and the treatment of female and pregnant prisoners.

Rodrigo Bacus is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo credit:  Aapo Haapanen/Creative Commons