The Council of Europe Anti-Torture Committee (CPT) has for the first time addressed gender identity discrimination in one of its reports. In its report issued on November 11, 2015, it recommends Austria to enable trans persons in detention access to trans specific health and legal gender recognition. Also, non-discrimination policies should be developed.
Read below the relevant part of the CPT report and the response of the Austrian government on the matter.
Report of the Council of Europe anti-torture Committee on Austria:
Thirdly, the delegation met one inmate who indicated that she was transgender. She stated that she was allowed to wear women’s clothes inside her cell when the door was closed, although when she was in the company of others she had to wear men’s clothes. She said that she had come out as a woman two years before and had not had any trouble with other inmates. She had now stopped therapy as her therapist had allegedly refused to discuss her gender identity issue. She said that she wanted to have a legal gender reassignment, hormone therapy and gender reassignment surgery, but had been told that she could not start cyproterone acetate and oestrogen treatment in prison, and that surgical and legal reassignment would be completely out of the question. This statement was confirmed by staff.
The CPT notes that gender reassignment procedures such as hormone treatment, surgery and psychological support are available to transgender persons in Austria. In addition, there are procedures in place for changing the name and sex of a transgender person on identity cards and other official documents. In the CPT’s view, persons deprived of their liberty should not be excluded from benefiting from these treatments and legal procedures provided for by law for transgender persons in Austria.
The Committee recommends that the Austrian authorities take the necessary steps to ensure that transgender persons in prisons (and, where appropriate, in other closed institutions) have access to assessment and treatment of their gender identity issue and, if they so wish, to the existing legal procedures of gender reassignment. Further, policies to combat discrimination and exclusion faced by transgender persons in closed institutions should be drawn up and implemented.
Response from Austrian Authorities:
The tendency to offer freedom for individual needs, provided security and order are guaranteed, is increasingly reflected in the treatment of transsexual inmates. In everyday practise, there often is a lack of knowledge about the phenomenon “transsexualism” and its manifestations. According to current practice, a transfer to a prison for women is only possible once the civil status has been changed. The legally ordained separate detention of male and female prisoners fails to meet the requirements of transsexual persons in their physical and social reality. The fact that since 2009 a gender change in the register of births is possible without any gender reassignment surgery, poses a further complementary problem for penal detention. As a match between biological sexual characteristics and legal civil status can no longer be presumed, new classification criteria should be developed. A classification according to the social gender or to the gender the person lived in before imprisonment could take a burden off the person involved and off the prison personnel. In line with the broadly-based public debate about transgender and transsexuality, a comprehensive information campaign in the penal services system by providing information and prevention material is being considered. Equally the possibility of establishing an expert group for this very purpose is under consideration. The creation of “standards of care” could be a first step towards quality assurance in the area of transidentity in penal detention and forensic placement in Austria.