WOLA: Advocacy for Human Rights in the Americas
30 Jul 2020 | Commentary

Trans Women Behind Bars: Strategies for Resistance in the midst of the COVID-19 Pandemic

While Latin American countries face deteriorating conditions in prisons and the ongoing impact of COVID-19 on incarcerated people, one group in conditions of vulnerability continues to be rendered invisible: trans women deprived of liberty. Although countries have the responsibility to protect the physical and mental health and well-being of all people in their custody, in particular those who come from more vulnerable situations, the majority of governments in the region have not implemented specific measures to protect LGBTI+ people behind bars. The impact of the COVID-19 pandemic on trans women deprived of liberty has been disproportionate in comparison with other groups, particularly because of the diverse intersectionalities affecting their lives.

In light of this worrisome situation, civil society organizations led by and/or that work with trans people deprived of liberty have developed various initiatives to ensure the full exercise of this group’s dignity and protection of their human rights. In this context, these organizations convened a workshop entitled Trans Women Behind Bars: Strategies for Resistance in the Context of the COVID-19 Pandemic, with the aim of sharing experiences and resistance strategies, along with good practices and challenges that are being faced by civil society groups.

Trans Women in Contexts of Confinement

Globally, trans women are subjected to discrimination, criminalization, and institutional violence, and they often face social exclusion, human rights violations, and transphobia. Many times, these factors lead them to work in highly criminalized informal economies, such as the drug market and/or sex work, by choice or in order to survive. As a result, they are profiled as being dangerous by the police, which makes them more vulnerable to abuse and to being incarcerated. Compared with other groups, trans women are overrepresented in prison and are more likely to suffer abuse and violence behind bars. At the same time, the lives of trans women in contexts of confinement are crisscrossed by other intersecting factors, including their race or ethnicity, migratory status, whether they have identification documents, their socioeconomic status, homelessness, drug dependence, and health background, among others.

In this context, trans women deprived of liberty are at greater risk of contracting COVID-19 and are more vulnerable to its effects. In Latin America, the average life expectancy of trans women is 35 years; many of them have chronic illnesses and a high prevalence of sexually transmitted infections, such as the Human Immunodeficiency Virus (HIV), syphilis, and hepatitis B. Many also have no other option for their transition process but to inject themselves with cooking or vegetable oil, and they lack adequate medical care. This is compounded by the fact that in the majority of prisons in the region, health care does not include a gender perspective or contemplate the particularities of trans women. Furthermore, medical practices tend to be replete with homophobic and transphobic discourses.

In addition, trans women deprived of liberty face diverse forms of violence that include discriminatory and humiliating practices and physical and psychological ill treatment, which causes this population to suffer irreparable harm. The Inter-American Commission on Human Rights (IACHR) reports that LGBTI+ persons in prison face a greater risk of sexual violence—including multiple sexual assaults—and other acts of violence and discrimination, at the hands of other people deprived of liberty or security personnel.

Given this situation, numerous international bodies have called upon states to undertake measures that include an intersectional and a gender approach for those groups facing special vulnerability, such as LGBTI+ people and those deprived of their liberty. The United Nations High Commissioner for Human Rights, Michelle Bachelet, has stated that, “LGBTI people are among the most vulnerable and marginalized in many societies, and among those most at risk from COVID-19.” Meanwhile, the IACHR’s Resolution 1/2020 calls for evaluating prison benefits and alternatives to incarceration in the case of people at risk, including trans women. Similarly, the United Nations Subcommittee on Prevention of Torture (SPT) recommended that states adopt measures to reduce the prison population via schemes for early, provisional, or temporary release and by reviewing all cases of pretrial detention.

In addition, trans women fit the criteria established by the United Nations High Commissioner to be eligible for alternatives to incarceration in the context of COVID-19, since they are people who 1) face a greater health risk if they were to contract the disease; 2) experience inhuman and unsafe prison conditions and situations of violence; and 3) have been criminalized, resulting in their excessive incarceration. However, the measures announced by various countries in the region to reduce the number of people behind bars have not taken into account trans people’s specific needs.

Additional Pandemic-related Challenges

In light of this worrisome situation, civil society organizations led by and/or that work with trans persons convened a workshop with the aim of sharing experiences and resistance strategies among trans women who have been behind bars, in the face of the COVID-19 pandemic. At the gathering, participants proposed building solidarity networks among organizations that work on this issue and sharing challenges, good practices, and civil society initiatives. The workshop, entitled Trans Women Behind Bars: Strategies for Resistance in the Context of the COVID-19 Pandemic, was organized by Almas Cautivas, Casa de las Muñecas Tiresias, Equis: Justicia para las Mujeres, Procuración Penitenciaria de la Nación of Argentina, the Corpora en Libertad regional network, and the Washington Office on Latin America (WOLA). Participants included 19 women from 8 countries in the Americas: Argentina, Bolivia, Brazil, El Salvador, Honduras, Mexico, the United States, and Uruguay.

The studies and testimonies shared in the workshop offer clear evidence that the COVID-19 pandemic has intensified inequalities and human rights violations affecting trans women in contexts of confinement. Prison systems in the region are based on cis-heteronormative structures that do not contemplate sexual or gender diversity. In addition, there is no official statistical information about the number of COVID-19 cases or the specific impact on trans women in prisons. On the one hand, prison authorities do not publish official figures disaggregated by gender identity, and on the other, monitoring by civil society organizations and national mechanisms for torture prevention—often carried out in person through on-site prison visits—is limited by the health measures that governments have adopted.

Restrictions on visits by relatives and organizations have left trans women unprotected, since they often depend on the food, hygiene products, and other support provided by the people visiting them. This situation is exacerbated for foreign women who face particular challenges that may include an irregular migratory status, a lack of stable housing or employment prior to their detention, and difficulty dealing with procedures in a criminal justice system with which they are not familiar. In countries such as Uruguay, visits by relatives are permitted; however, many trans women do not maintain ties with their families.

In addition to the precarious health services and risks mentioned previously, several organizations reported an increase in problems related to trans women’s mental health and in suicides, given the anxiety and concern surrounding the pandemic in contexts of confinement. In the absence of mental health services, there has been an increase in the indiscriminate use of pharmaceutical drugs, and many trans women are forced to take medication as a means to control their behavior.

Civil Society Organizations’ Resistance Strategies

Before the COVID-19 crisis, civil society organizations participating in the workshop had carried out social, political, and legal advocacy to improve conditions inside prisons, as well as to reform the criminal justice system and reduce rising incarceration rates. In the new context they face due to the global pandemic, these organizations have redoubled their efforts. A recent report by the Red Corpora en Libertad network and by the Gender and Sexual Diversity Team of the National Prison Ombudsman’s Office in Argentina (Procuración Penitenciaria de la Nación) sheds light on the situation of LGTBI+ persons deprived of liberty, analyzing the harmful effects of the COVID-19 pandemic and proposing policy recommendations for protecting this population’s rights. Other organizations that work with trans women deprived of liberty have taken initiatives such as: 1) requesting alternatives to incarceration, including house arrest; 2) sending food, clothing, and hygiene products to trans women deprived of liberty; and 3) promoting programs and support networks for trans women who are released from prison.

In general, trans women’s access to alternatives to incarceration is complicated because judicial systems do not take into consideration the living conditions of the trans community. Also, some of these alternative measures entail additional challenges. For example, house arrest is difficult for trans women who were living on the street before entering prison, since they must show proof of residence. Many of these women have had their ties with family, friends, and their community ruptured, due to rejection and discrimination. Another issue involves the payment of restitution or fines to victims or to the state for the offenses committed, which is difficult for trans women who live in poverty.

One of the main challenges identified during the workshop is the lack of reentry programs for people who have been in prison, particularly LGBTI+ persons. Although many of the problems faced by trans women upon leaving prison are similar to those of other people deprived of liberty, the intensity and multiplicity of their post-release needs can be very different. Some of the economic, social, and legal challenges they face include loneliness and neglect; discrimination and stigma; a lack of psychological support; insufficient skills and education needed to find work; and problems in obtaining housing and identification documents and in exercising their civil rights, such as voting.

Several of the organizations present at the workshop shared strategies for supporting women who leave prison. The Casa de las Muñecas Tiresias association has distributed food to vulnerable groups in different areas of Mexico City where people who engage in sex work, homeless people, and people who use drugs live in proximity. With support from the government of Mexico City, which donated the property, this organization opened the Paola Buenrostro shelter, where 15 trans women are currently living and receiving guidance from a teacher to get elementary, high school, or college-prep educational certifications, while also participating in collective readings or film debates.

During the workshop, trans women who have been in prison advocated for alternatives to incarceration and underscored the need to incorporate intersectional perspectives and a differentiated approach that would protect the rights of LGTBI+ people. These recommendations include:

  • Take immediate action to release trans women who have greater health risks and who find themselves in inhuman and unsafe prison conditions. Their release could be implemented via alternatives to incarceration, pardons, sentence reductions, or other means, in accordance with the legal and judicial system in a given country.
  • Ensure that LGTBI+ persons deprived of liberty have access to information on the COVID-19 situation.
  • Establish a Penitentiary Monitoring Program on COVID-19 with a gender and sexual diversity perspective in order to identify the differentiated effects on groups in situations of vulnerability.
  • Provide all of the inputs needed to prevent, control, and safeguard the health of LGTBI+ persons deprived of liberty in the face of the COVID-19 pandemic.
  • Guarantee that trans women have adequate access to comprehensive health care and counseling suited to their needs and specificities, particularly in light of possible COVID-19 contagion. For women who opt for it, the continuity of hormone treatments and reassignment surgery should be ensured.
  • Promote constant awareness-raising and training on sexual orientation, gender identity, and gender expression for prison workers, and other actors and officials in the judicial system. These trainings should be coordinated with specialized civil society organizations that have experience in these matters and should include the active participation of trans women.
  • Support reentry for trans women who leave prison by ensuring, at the very least, tests to detect COVID-19, proper medical services, a safe form of transportation home or to a halfway house, and the immediate provision of official identification documents.
  • Implement programs and partnerships between the state and civil society organizations—including the private sector when appropriate—to ensure access to work, personal development, health, housing, and education to people who have been deprived of liberty.
  • Promote the participation of trans women who have been deprived of liberty in spaces for planning and implementing public policies aimed specifically at promoting the human rights of the trans population.

 Hilary Burke translated this commentary from the original Spanish.