Prison authorities in Trans dilemma

Ordinarily in Lesotho when a person is convicted of a crime and is sentenced to prison, allocating them to a men’s or women’s jail depends on their “legal gender”. This is also referred to as a person’s biological makeup. According to Thabo Keketsi*, a correctional officer in Mohale’s Hoek, there has never been a time when prison authorities have been presented with a situation where a person identifies differently from his or her birth-assigned sex – that is, until now.

“We received a person who is biologically male but identifies as female in our prison, and it has created a lot of confusion among us and the prisoners,” Keketsi said. According to him, in February 2018, a “male” adult of Mohale’s Hoek, Likhutlong, who prefers to be called Cindy was convicted of theft and committed to prison by the Mohale’s Hoek magistrate.

Although Cindy has lived as a woman for most of her adult life, the criminal justice system demands that she be placed in a men’s prison, as per her birth certificate. Keketsi also indicated that the members of the LGBT+ community they’ve had have either been gay or lesbian, and people’s sexuality has never caused any havoc. Cindy’s situation is different.

Keketsi indicated that the correctional officers were in a serious dilemma. Two things came to mind: “If we put this person in a female or male prison, what are the risks for them? Secondly, what risk are they to other inmates?” The attempt to put her in any one of the prisons was a challenge. “When we tried to place her in female prison, the non-transgender women argued that a “man” should not be housed with them because that would amount to a violation of their rights, particularly their right to privacy,” he said. The prison officers were left with no choice but to house her in a male prison. That attempt failed too. Keketsi indicated that Cindy was crying: “I could see serious fear in her eyes and she was pleading with us not to.”

“What was also worrying was the fact that Cindy looked so feminine and placing her in male prison was to expose her to more danger and violence from the male inmates. We resorted to placing her in an isolated cell (protective custody), which is not allowed in law unless there are serious grounds for doing so,” Keketsi explains.

He further indicated that housing was not the only problem for them as prison authorities – they’re also having difficulty in calling Cindy “she”. Most of the time they were referring to her as a he, which was very offensive to Cindy.

From the narratives, one can tell that it’s uncommon for a transgender person to stand up for her own rights in Lesotho – and Cindy’s may not be the only case. Perhaps some transgender people remain in silence. The question to be asked is what would happen if more transgender persons are convicted and assert their rights as Cindy did?

An LGBT+ campaigner Dkay Kokome indicated that this situation must prompt the government to recognise the growing, vocal transgender community. He indicated that there is need for separate detention and holding facilities that cater for transgender communities.

“Like other people, transgender people may come into contact with criminal justice as suspects and offenders and should be treated with respect and dignity,” says Kokome. “The current set up in prisons or in holding cells is intimidating, hostile, degrading and humiliating.”

Advocate Mamzwakhe Makamane expressed the need to separate transgender inmates from other inmates. She echoed the sentiments shared by Kokome but indicated that because Lesotho has no facilities to house transgender inmates in separate prisons, there is a need to balance the interests of both groups. She argues that housing Cindy in a female prison would amount to a violation of those women’s rights, unless it can be proved that she has fully transitioned. The best place to be housed is the male prison, she says.

Although putting Cindy in a female prison has proven uncomfortable for those inmates, it is imperative that transgender inmates should be housed according to the gender with which they identify, rather than their assigned gender. This is because being transgender is a known risk factor for being victimised, especially in a confined setting. Around the globe transgender people – especially transwomen – are vulnerable to different kinds of abuse in prisons such as rape, violence, discrimination and torture. Based on reports of constant violations of transwomens’ rights in male prisons, some countries implemented policies and guidelines to protect transgender inmates from abuse. For instance, the US department of Justice has issued its manual on transgender offences.

Placing transgender people in prisons based on their biological sex subjects them to inhuman and degrading punishment. This amounts to the serious violation of their rights. There is an obligation on the Lesotho government to take a step towards protecting transgender prisoners because sexual abuse is commonly faced by transgender inmates, especially transwomen inmates. Looking at the high prevalence of HIV in the country this calls for urgent attention. More awareness and advocacy on transgender rights is needed not only in prisons but in society so that people like Cindy should not have to suffer additional misunderstanding and trauma during future incarceration.

*Name changed to protect person’s identity.