LGBTI stands for Lesbian, Gay, Bisexual, Transgender and Intersex. While these terms are increasingly being used at a global level, in different cultures other terms are sometimes used to describe people who form same-sex relationships and those who exhibit non-binary gender identities.
Sexual orientation refers to a person’s physical, romantic and/or emotional attraction towards other people. Gay men and lesbian women are attracted to individuals of the same sex as themselves, while bisexual people can be attracted to individuals of the same or different sex. Sexual orientation is not related to gender identity, which reflects a deeply felt and experienced sense of one’s own gender. For transgender people, there is an inconsistency between their sense of their own gender and the sex they were assigned at birth. An intersex person may identify as male or female or as neither.
Given the importance of cultural and social dimensions in defining sexuality and identity, as well as the differences between the sub-groups and the individuals who make up the “sexual minorities”, the acronym LGBTI must therefore be treated with caution. What matters is to be aware of the fact that the people concerned represent a group which is vulnerable in detention, in the sense that they are exposed to higher levels of risk of discrimination, abuse and violation of their rights. Their minority status compared to the rest of the population of detainees may also contribute to a lack of adequate protection and to neglect or ignorance of their specific needs.
The cultural, social or religious dimensions should never be used to justify the violation of the basic rights of LGBTI people, including when they are deprived of liberty. However, many countries have discriminatory laws that criminalise sexual relationships between people of the same gender and behaviour described as “unnatural”. For these reasons, people deprived of liberty because of their sexual orientation or gender identity are even more exposed to the risk of stigmatisation, abuse and ill-treatment.
There are numerous risks to LBGTI people who are deprived of their liberty, from the moment of their arrest to their release and even afterwards, as stigmatisation and rejection may follow from a period in prison, especially if their sexual orientation is revealed during their arrest or detention.
In many countries, LBGTI people may be arrested by the police solely on the basis of their sexual orientation or gender identity, even if such arrest is not authorised by the legislative framework. LBGTI people are therefore exposed to the risk of arbitrary detention, blackmail, humiliation, ill-treatment and sexual violence. The considerable imbalance of power during questioning by law enforcement agencies carries particular risks for LGBTI people, especially concerning the obtaining of confessions under duress by taking advantage of their vulnerability.
LGBTI persons in preventive detention or who are serving their sentence face persistent risks of discrimination and abuse. Sexual minorities are more exposed than the rest of the prison of the prison population to the risks of stigmatisation, bullying, even physical and sexual violence from the detaining authorities or from their fellow detainees. Preventive policies should be put in place within central management and it is imperative that protective measures be taken by the authorities for any situation that requires them. Policies and measures should include the careful selection of detainees sharing the same cell or the same wing of a building, raising awareness about bullying, discrimination and abuse based on sexual orientation or gender identity, and access to an effective and independent complaint system. LGBTI persons should never be put in isolation as a matter of routine and this should only be done with the informed consent of the people concerned, and without depriving them of services to which other detainees have access. When conjugal visits are allowed, they should also be offered to LGBTI persons.
Transgender persons face specific problems, especially relating to their placement in a prison or in a particular wing. In the majority of cases they are automatically placed in a men’s or women’s section according to their biological gender. This is done without taking into account their own feelings or the procedures to change gender that have initiated through hormonal therapies and/or by surgery. Given the heightened risk of abuse, these decisions should be taken on a case by case basis, with the consent of the persons concerned and the approval of specialist multi-disciplinary committees. Similarly, there should be special procedures in place concerning body searches. Support and therapeutic treatment for transgender people should be carried out according to the principle of equivalence of care and treatment given in the outside world.
State and detaining authorities have a responsibility of protection and care towards LGBTI detainees. They are also responsible for any abuse committed by fellow detainees and must make every effort to prevent it.
- Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity
- Recommendation CM/Rec(2010)5, of the Committee of Ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity, 2010
- African Commission on Human and Peoples' Rights, Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity, April-May 2014
- Association for the Prevention of Torture, Towards the Effective Protection of LGBTI Persons Deprived of Liberty: A Monitoring Guide, Geneva, December 2018
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- Center for Human Rights and Humanitarian Law, Anti-Torture Initiative, Gender Perspectives on Torture: Law and Practice, Washington University, Washington College of Law
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- OSCE/ODIHR, Integrating the Issue of Sexual and Gender-Based Violence in Detention Monitoring: A Guidance Note for Oversight Mechanisms, January 2021