Guidelines for transgender prisoners in police custody and during sentencing
Established by the Norwegian criminal justice directorate
1. Background
On the 17th of June 2016 the law regarding change of legal sex was implemented. According to section 2 of the law, people who are resident in Norway and experience belonging to the opposite sex of the one they are registered with in the National Registry (trans people), have a right to change their legal sex. There is no requirement for justification beyond self-perceived sex. The legal sex shall be taken into consideration when applying other laws and regulations, according to section 6 of the law.
2. Terminology
The terminology used by the prison service is essential in order to establish a respectful approach to trans people. It's important to note that there can be variations in how different trans people define themselves. The prison service must respect the diversity of trans people.
Birth sex: The sex a person has at birth.
Legal sex: The sex a person has registered in the National Registry.
Trans person: Trans person is a collective term for different groups of people who experience that their sex identity is different to the sex they were assigned at birth.
Sex identity: A person's experience of being a woman, a man, both woman and man or none.
Sex expression: The way a person expresses themselves as either a woman, a man, or outside of society's norm of two sexes.
Sex incongruence: Sex incongruence refers to the condition where a person experience an incongruence between their own sex identity or sex expression and the sex they were assigned at birth.
Transwoman: Transwoman is used to refer to a person who is born male but who has a female sex identity. The person can have undergone sex reassignment treatment. The description MtF (male-to-female) is also used.
Transman: Transman is used to refer to a person who is born female but has a male sex identity. the person can have undergone sex reassignment treatment. The description FtM (female to male) is also used.
Transgender* (previously transsexual): A diagnosis (F.64.0) which makes someone entitled to sex reassignment treatment, that is, genitalia and certain other external sex characteristics can be adjusted to fit the sex the individual experiences being.
Crossdressing/transvestite: A person who uses clothing, shoes, makeup, jewellery etc, traditionally associated with the opposite sex. Both women and men, with different sexual orientations can be crossdressers.
3. Scopes and boundaries.
The criminal justice directorate are providing these guidelines to facilitate criminal proceedings for trans persons. The guidelines include both trans people who have changed legal sex and trans people who have not changed legal sex. The guidelines apply to detainees and sentenced prisoners.
The guidelines do not include people who wear clothing, shoes, makeup, jewellery etc, traditionally associated with the opposite sex, unless the person is living as the opposite sex (crossdressing). Nor do the guidelines include persons who temporary change their sex expression by acting as the opposite sex using external effects (drag).
4. Purpose
The purpose of the policy is to ensure equal treatment of trans people who are in incancerated. The guidelines shall facilitate equal treatment and ensure that inmates are not discriminated against on the basis of sex identity or sex expression.
The guidelines seek to clarify relevant terms and describe the procedure, including facilitation.
5. Regulations
5.1 EMC and the Equality and Prohibition of Discrimination Act (Equality and Equal Opportunities Discrimination Act)
Trans people are not guaranteed rights in the form of a separate convention. However, trans people are protected by international human rights which Norway have signed up to. What this means in practice is covered in depth and concretized in the so-called Yogyakarta Principles and in the Committee of Ministers of the Council of Europe LGBT Recommendations, among other places.
The Equality and Anti-Discrimination Act provides protection against discrimination on the basis of sex identity and sex expression, according to section 6.
5.2 The Execution of Sentences Act
The Execution of Sentences Act, with its regulations and guidelines, does not differentiate between women and men in custody or under sentencing. Nevertheless some parts of the regulations are of particular significance to trans people.
5.2.1 The Execution of Sentences Act sections 11 and 47
Regulations concerning the placement of inmates follow sections 11 and 47 of The Execution of Sentences Act with its related regulations and guidelines. The regulations provide guidelines for what should be taken into account when deciding where to place prisoners.
The regulations do not regulate as to whether men are to be placed in male prisons or women in female prisons. In practice however men are to be placed in the male prison/estate and women in the female prison/estate.
As a consequence of The Criminal Prosecution Act and its corresponding regulations and guidelines not mentioning where men and women should be placed, there is no legal requirement according to the law on change of legal sex section 6 regarding whether transmen should be placed in men's prisons / estates or whether transwomen should be placed in women's prisons / estates.
Although there's no legal requirement to place prisoners according to their legal sex the placement of trans people present specific challenges.
6. General rule of placement
The main rule is that both summoning and sentencing to imprisonment is done on the basis of social security number ie legal sex. The main rule includes both prisoners in custody and convicted prisoners according to paragraph 3 above.
In cases where the victim / convicted person has changed legal sex, exceptions may be made to the main rule, if there may be a danger to the security of his or her inmates, or if such a placement seems to be obviously unfortunate.
If the sex identity of the prisoners and / or sex expressions does not correspond to the legal sex, after an individual overall assessment, exception to the main rule can be made.
The same applies to transfers to another prison.
7. Proceedings.
7.1 Notice of sentencing and transfer from police arrest.
The convicted person's legal sex is taken into account when deciding where they should be placed after being sentenced or during transport from police arrest, according to section 6, first paragraph.
7.2 Incarceration
If the prison staff during transfer from police arrest or after incarceration considers that placing the prisoner according to their legal sex is a security risk or appears clearly unfortunate, according to section 6, second paragraph, the prison must then provide a transfer to another suitable prison.
In cases where the prison considers making exceptions to the rule on placement according to legal sex, the inmates should have the opportunity to voice their opinion before being transferred.
If inmates during transfer from police arrest or after sentencing to prison, express that there is no correlation between their sex identity and / or sex expression and what appears on official documents, the prison staff where the prisoner is sentenced or transferred to must enquire about the sex identity of the prisoner.
If sex identity and / or sex expression is not in correlation with what appears on official documents, the prison must try to clarify this in a respectful manner. The prison must, based on their findings conduct an overall assessment regarding whether the individual should be transferred to another suitable male or female prison, according to section 6, third chapter.
When there is no correlation between sex identity and / or sex expression and what appears on official documents, the individual must be heard before the prison decides on a potential transfer.
If it during the clarification of the question about whether placement is necessary to maintain the inmate's security or placement with other inmates is considered a security risk, measures pursuant to section 37 of the Execution of Sentences Act may be considered implemented. Compensatory measures should then as far as possible be implemented.
8. Follow-up and handling
8.1 Generally
The prison service shall at all times use the inmates legal sex, title, pronouns and desired name. It is specified that fictitious names or nicknames are not included.
Information about the sex of the inmates must be handled with care.
The prison service can, where it is considered appropriate or can contribute to a better stay in prison, encourage inmates to be open about their life situation with fellow inmates. Each unit must assess the extent to which it is appropriate to inform other inmates. This assumes that the inmates themselves agree to such information sharing.
8.2 Access to hygiene articles and clothing, according to sections 3-22 of the Execution of Sentences Act.
According to the Execution of Sentencing Act section 3-22 it follows that inmates should be provided with essential toiletries. The prison must ensure that inmates receive toiletries in accordance with personal needs including hygiene items and shaving goods. In this context, birth sex must be taken into consideration.
8.3 Particularly regarding strip searches, in accordance with The Execution of Sentences Act section 28
The regulations relating to the strip searching of inmates are based on birth sex, in accordance with The Execution of Sentences Act section 28 guidelines point 28.3 It is therefore necessary to make some clarifications to the regulations
Regarding strip searches, a trans person should be asked if he / she wants the inspection carried out by a male or female officer. The wishes of the inmate should be met so far it is practically possible.
During strip searches, the prisoner must be shown consideration if they have to remove wigs, breast binders, breast forms etc. These must be returned to the prisoner as soon as the strip search is over and the prisoner must be given the opportunity to replace them before leaving the room.
9. Training
The Equality and Anti-Discrimination Act provides protection against discrimination on the basis of sex identity and sex expression, according to section 6.
5.2 The Execution of Sentences Act
The Execution of Sentences Act, with its regulations and guidelines, does not differentiate between women and men in custody or under sentencing. Nevertheless some parts of the regulations are of particular significance to trans people.
5.2.1 The Execution of Sentences Act sections 11 and 47
Regulations concerning the placement of inmates follow sections 11 and 47 of The Execution of Sentences Act with its related regulations and guidelines. The regulations provide guidelines for what should be taken into account when deciding where to place prisoners.
The regulations do not regulate as to whether men are to be placed in male prisons or women in female prisons. In practice however men are to be placed in the male prison/estate and women in the female prison/estate.
As a consequence of The Criminal Prosecution Act and its corresponding regulations and guidelines not mentioning where men and women should be placed, there is no legal requirement according to the law on change of legal sex section 6 regarding whether transmen should be placed in men's prisons / estates or whether transwomen should be placed in women's prisons / estates.
Although there's no legal requirement to place prisoners according to their legal sex the placement of trans people present specific challenges.
6. General rule of placement
The main rule is that both summoning and sentencing to imprisonment is done on the basis of social security number ie legal sex. The main rule includes both prisoners in custody and convicted prisoners according to paragraph 3 above.
In cases where the victim / convicted person has changed legal sex, exceptions may be made to the main rule, if there may be a danger to the security of his or her inmates, or if such a placement seems to be obviously unfortunate.
If the sex identity of the prisoners and / or sex expressions does not correspond to the legal sex, after an individual overall assessment, exception to the main rule can be made.
The same applies to transfers to another prison.
7. Proceedings.
7.1 Notice of sentencing and transfer from police arrest.
The convicted person's legal sex is taken into account when deciding where they should be placed after being sentenced or during transport from police arrest, according to section 6, first paragraph.
7.2 Incarceration
If the prison staff during transfer from police arrest or after incarceration considers that placing the prisoner according to their legal sex is a security risk or appears clearly unfortunate, according to section 6, second paragraph, the prison must then provide a transfer to another suitable prison.
In cases where the prison considers making exceptions to the rule on placement according to legal sex, the inmates should have the opportunity to voice their opinion before being transferred.
If inmates during transfer from police arrest or after sentencing to prison, express that there is no correlation between their sex identity and / or sex expression and what appears on official documents, the prison staff where the prisoner is sentenced or transferred to must enquire about the sex identity of the prisoner.
If sex identity and / or sex expression is not in correlation with what appears on official documents, the prison must try to clarify this in a respectful manner. The prison must, based on their findings conduct an overall assessment regarding whether the individual should be transferred to another suitable male or female prison, according to section 6, third chapter.
When there is no correlation between sex identity and / or sex expression and what appears on official documents, the individual must be heard before the prison decides on a potential transfer.
If it during the clarification of the question about whether placement is necessary to maintain the inmate's security or placement with other inmates is considered a security risk, measures pursuant to section 37 of the Execution of Sentences Act may be considered implemented. Compensatory measures should then as far as possible be implemented.
8. Follow-up and handling
8.1 Generally
The prison service shall at all times use the inmates legal sex, title, pronouns and desired name. It is specified that fictitious names or nicknames are not included.
Information about the sex of the inmates must be handled with care.
The prison service can, where it is considered appropriate or can contribute to a better stay in prison, encourage inmates to be open about their life situation with fellow inmates. Each unit must assess the extent to which it is appropriate to inform other inmates. This assumes that the inmates themselves agree to such information sharing.
8.2 Access to hygiene articles and clothing, according to sections 3-22 of the Execution of Sentences Act.
According to the Execution of Sentencing Act section 3-22 it follows that inmates should be provided with essential toiletries. The prison must ensure that inmates receive toiletries in accordance with personal needs including hygiene items and shaving goods. In this context, birth sex must be taken into consideration.
8.3 Particularly regarding strip searches, in accordance with The Execution of Sentences Act section 28
The regulations relating to the strip searching of inmates are based on birth sex, in accordance with The Execution of Sentences Act section 28 guidelines point 28.3 It is therefore necessary to make some clarifications to the regulations
Regarding strip searches, a trans person should be asked if he / she wants the inspection carried out by a male or female officer. The wishes of the inmate should be met so far it is practically possible.
During strip searches, the prisoner must be shown consideration if they have to remove wigs, breast binders, breast forms etc. These must be returned to the prisoner as soon as the strip search is over and the prisoner must be given the opportunity to replace them before leaving the room.
9. Training
Correctional Services staff shall be informed about trans people and what types of challenges might
occur in a prison situation. The Head of the prison shall ensure that they have sufficient
knowledge of trans people and facilitate the best possible arrangements during their detention.
Further the Head of the prison shall ensure that the staff promotes respect and understanding of diversity.
occur in a prison situation. The Head of the prison shall ensure that they have sufficient
knowledge of trans people and facilitate the best possible arrangements during their detention.
Further the Head of the prison shall ensure that the staff promotes respect and understanding of diversity.
10. Implementation
The guidelines come into force [date].
The original can be found here:
http://www.kriminalomsorgen.no/getfile.php/4205508.823.nsnbl7jkq7llzm/H%C3%B8ring+-+Retningslinjer+for+transpersoner+i+varetekt+og+under+straffegjennomf%C3%B8ring.pdf
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