Transgender Convicts Deserve Leniency, Supreme Court Says

Convict receives reduced sentence because he, like all other transgender prisoners, faces solitary confinement.

The Supreme Court has reduced the prison sentence of a transgender man convicted of robbing a gas station near Eilat citing harsher imprisonment conditions in its decision for leniency. It should be taken into consideration during sentencing that transgender prisoners face solitary confinement to protect them from fellow prisoners, the court said.

The defendant, 29, whose name is barred from publication, was born female, but from a young age identified as male. He is in the process of undergoing a sex change and has already had breast-removal surgery. The Be'er Sheva District Court sentenced him and two co-defendants to 15 months in prison and ordered them pay NIS 5,000 as compensation to the gas station clerk they assaulted during the robbery. The Supreme Court reduced the transgender man’s sentence to 10 months.

The three were convicted by a district court of an April 2010 robbery at a gas station in Kibbutz Eilot, during which they assaulted the clerk, held a knife to his throat, and stole NIS 1,000. The transgender defendant appealed to the Supreme Court to contest the jail sentence. He faces unusually difficult jail conditions, and his sentence should therefore be reduced, the transgender man’s attorney, Liora Glaubach-Hacohen of the Public Defender’s Office, told the Supreme Court. The separation of transgender prisoners from the rest of the incarcerated population, per Israel Prison Service rules, should constitute a mitigating factor in sentencing, Glaubach-Hacohen said.

The district court had ruled there was no reason to separate the transgender man from the regular prison population. "From a physiological standpoint, she is a woman and it doesn't appear that there is anything preventing her from being sent to a women's prison," the court said. "In any event, it can be assumed that the prison service will act according to its policy and act in a manner that will not endanger her."

The Israel Prison Service, however, told the Supreme Court that transgender inmates are handled differently. When it comes to convicts whose sexual identities are ambiguous, the service said, they must be incarcerated separately out of concern they or those around them might be harmed. The special treatment, Israel Prison Service said, means the transgender prisoners must be kept in isolation and cannot partake in activities offered to the regular inmates.

"Over the years, we have done everything we can to make it easier for these prisoners, demonstrating sensitivity to their special circumstances,” the prison service said. The transgender man convicted in the gas station robbery would have to be kept in total isolation, at least for a while, because he she has not yet undergone sex reassignment surgery, the prison service added.

Supreme Court Justices Neal Hendel, Noam Solberg and Salim Joubran ruled that the district court had not accorded sufficient weight to the defendant's unusual circumstances. "The personal circumstances of [the defendant] at this stage of her life are not routine or common, but are unusual," Hendel wrote, adding that the district court appears believed the defendant's isolation in jail would not be absolutely necessary. Hendel wrote that, in light of the fact at the Supreme Court received the information making it clear that he would be separated from the other prisoners, "I am of the belief that it is appropriate for additional leniency when it comes to [her] sentence."

Hendel said the sentence should be reduced from 15 to 10 months but ruled out community service as substitute punishment citing the severity of the crime.  

Itzik Ben Malki