‘Don’t ask, don’t tell’: Breaking the cycle of violence against LGBTI persons in detention

Lesbian, gay, bisexual, transgender and intersex (LGBTI) persons in detention – or persons perceived as belonging to this group – are in a situation of particular vulnerability and at risk of human rights violations and abuses, including by fellow detainees, throughout the entire criminal justice system. In this blog, Jean-Sébastien Blanc of the Association for the Prevention of Torture (APT), discusses a new tool, published today by the APT, which provides guidance on monitoring the situation of LGBTI prisoners in different types of detention facilities and assists monitors in key aspects of their work.

Lesbian, gay, bisexual, transgender and intersex (LGBTI) people have historically been subjected to discrimination and violence across the world. These manifold forms of abuse occur in all contexts, but there is one particular situation in which violence is magnified, and where LGBTI persons are rendered extremely vulnerable: deprivation of liberty in any type of detention setting.

Closed institutions are places that exert extreme control over the bodies and souls of individuals, and institutional violence may materialise in countless manifestations. In detention, LGBTI people face a dangerous nexus: in addition to being vulnerable due to the fact of confinement, they are – in the words of the UN Special Rapporteur on Torture – also ‘disproportionately subjected to torture and other forms of ill-treatment, because they fail to conform to socially constructed gender expectations’.[1]

Data regarding LGBTI prisoners remains generally scarce, but where it is available it reveals that they are more likely to have been sexually victimised and to report mental health problems, experience solitary confinement and be subjected to sanctions. Even less data is available specifically on the situations of bisexual and intersex persons. This reality points to the important fact that the ‘LGBTI’ acronym refers to a very diverse group of people, many of whom may not identify with it and may reject its labels and associated narratives. Notwithstanding these differences, the common denominator remains precisely the types of acute risks faced by LGBTI persons when deprived of their liberty.

LGBTI persons…are often mocked, humiliated, subjected to abusive body searches, disproportionately targeted by law enforcement and custodial officials, harassed by fellow inmates and confined to the darkest corners of prisons.

Interestingly, two sides of the same coin can be used to best explain why LGBTI people are disproportionately exposed to abuses in detention: visibility and invisibility. On one hand, visibility gives rise to discriminatory abuses against LGBTI persons in detention, for not abiding by socially constructed gender expectations. As such they are often mocked, humiliated, subjected to abusive body searches, disproportionately targeted by law enforcement and custodial officials, harassed by fellow inmates and confined to the darkest corners of prisons. On the other hand, the invisibility of LGBTI persons in detention settings encourages and perpetuates these very cycles of discrimination and abuse. It is often the case that LGBTI people are not on the radar of prison or law enforcement officials, judges, and oversight bodies, do not feature in statistics, and actively avoid official channels of complaints for fear of reprisals. As such they simply do not exist in the eyes of the authorities.

This paradoxical reality places LGBTI persons deprived of liberty in highly precarious situations that deny both their fundamental rights to freedom of self-expression and to freedom from discrimination, and their right to receive effective protection from violence and abuse on the grounds of sexual orientation and gender identity. In this sense, the manifestation of ‘Don’t ask, don’t tell’ policies in prison settings, which essentially demand that LGBTI prisoners ‘make no noise’ and render themselves invisible, is a disturbing one, which not only denies their human dignity but also allows authorities to ignore and avoid their obligations to respect and fulfill these rights. In a revealing recent example, the Swiss government rejected a parliamentary motion asking for more data on LGBTI prisoners, by claiming, among other arguments, that the lack of official complaints reflects an absence of problems. No grievance, no problem – a simple but dangerously misguided equation.

The situation of LGBTI prisoners of course varies from one region to another. It is particularly dire in the 72 countries that continue to criminalise same-sex relationships, where people can be arrested and detained simply because of who they are. Repealing such laws, as urged by the UN Subcommittee for the Prevention of Torture, is ‘a mandatory requirement for the prevention of torture against lesbian, gay, bisexual, transgender and intersex persons’.[2] At the opposite end of the spectrum, there are countries where trans women can be allocated in female facilities on the basis of their self-identified gender, where gay detainees have access to support groups in prisons, and where LGBTI focal points exist within law enforcement services. But despite such welcome improvements, there is still a long way to go.

Independent monitoring bodies, thanks to their ability to access information first-hand, can play a pivotal role in shedding light on this issue and recommending ways to improve the situations of LGBTI prisoners. National Preventive Mechanisms (NPMs), established under the Optional Protocol to the Convention against Torture (OPCAT), with their robust visiting mandates, are particularly well-placed in this regard. However, there is a glaring lack of guidelines to assist them in these endeavours.

Independent monitoring bodies, thanks to their ability to access information first-hand, can play a pivotal role in…recommending ways to improve the situations of LGBTI prisoners.

In response to this reality, the Association for the Prevention of Torture (APT) has today published a monitoring guide, Towards the effective protection of LGBTI persons deprived of their liberty. The guide sets forth a detailed methodology for monitoring the situation of LGBTI persons in detention, inclusive of specific guidance for different types of facilities (prisons, police custody and immigration detention). This manual also contains practical checklists designed to assist monitors in key aspects of their work, and is available – in addition to English – in Portuguese, French and Spanish.

It is important for monitoring bodies – as for all institutions – to put in place policies expressly prohibiting discrimination against all minorities, including LGBTI persons. This will reinforce and convey strong messages about the prohibition against discrimination, including towards staff members working for these institutions, and enable NPMs and other oversight bodies to more effectively transform such messages into concrete measures during their monitoring activities. Very often, effectively tackling these issues will also entail a realisation that the necessary expertise lies outside the institution and that there is a need to seek the assistance of experts from civil society or academia in strengthening capacities and reviewing policies and monitoring tools.

Ultimately, every person undertaking monitoring activities must be able to detect, assess and appropriately respond to situations of discrimination and patterns and instances of discriminatory abuse. This requires applying what the UN Special Rapporteur on Torture has called ‘gendered and intersectional lenses [to] account adequately for the impact of entrenched discrimination, patriarchal, heteronormative and discriminatory power structures and socialized gender stereotypes’.[3] In this sense, the role of monitors can and ought to be identified as one that is also critical to mobilising policymakers and prison authorities to seriously tackle the roots of homophobia and transphobia and deconstruct toxic models of gender norms and expectations.

More information

Click here to read LGBTI persons deprived of their liberty: a framework for preventive monitoring. This report, published by PRI and the APT, outlines the main risk factors and situations to which LGBTI persons are exposed when they are deprived of their liberty in the criminal justice system, as well as proposing possible avenues of action that could be taken by monitoring bodies. The paper is part of PRI/APT’s Detention Monitoring Tool, which aims to provide analysis and practical guidance to help monitoring bodies to fulfil their preventive mandate as effectively as possible when visiting police facilities or prisons.

[1] Report of the UN Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment to the UN General Assembly, A/56/156, 3 July 2001, para.19.

[2] Eighth annual report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, CAT/C/54/2, 26 March 2015, para. 70.

[3] Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/31/57, 5 January 2016, para. 5.