Transgender prisoners will no longer be kept in isolation, the Israel Prison Service has announced. Until now, the policy was that prisoners or detainees whose gender identity was “ambiguous” should be kept in administrative separation.
The new policy came in response to a petition to the High Court of Justice by Doreen Bilia, a transgender woman who spent a few days under arrest following a fight with her neighbors, and was kept in isolation at a men’s prison.
The new rules state that transgender prisoners can be held in isolation only for the same reason that applies to every other prisoner – as punishment for a disciplinary offense. In addition, transgender prisoners from now on will be able to participate in all prison activities, such as classes and work.
The new policy also lays down guidelines for how to determine whether a transgender prisoner should be sent to a men’s prison or a women’s one. Each case should be judged on its own merits, the rules say, “taking into account, among other things, his appearance, how the prisoner self-identifies and at what stage they stand in the process of changing their gender identity.”
Until now, transgender prisoners could be assigned to a prison appropriate to their new gender identity only if they had already undergone a gender affirmation operation.
Bilia’s High Court petition said that when she was first arrested, a policeman questioned her about her sexual organs and what medical procedures she had undergone, then decided to send her to a men’s prison.
“As a transgender woman in jail, policemen harassed me about my sexual organs, asked me if I have a penis or a vagina, and I slept in solitary because I couldn’t be with either women or men,” she wrote.
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The petition was filed with help from The Aguda – Israel’s LGBT Task Force, and Project Gila, the movement for transgender empowerment.
Although the new rules are a significant improvement on the old, they still retain some offensive portions of the old policy. For instance, they stipulate that transgender prisoners will still be held separately from other prisoners for the first five days.
In addition, they state that body searches of transgender prisoners or detainees will be done, “as needed,” by two wardens – one male and one female. “Each in turn will examine the part of the body appropriate to the prisoner’s gender identity,” they continue. “In other words, in the case of a prisoner who’s in the process of gender affirmation but hasn’t yet completed the process, the male body parts will be examined by a man warden and the female parts by a woman warden, and vice versa.”
Bilia’s attorney, Hagai Kalai, said that a study of transgender prisoners conducted under the old rules didn’t find a single case in which a prisoner’s gender identity was deemed “clear.” Consequently, all of them were held separately.
Moreover, he said, the old policy’s description of transgender prisoners’ gender identity as being “ambiguous” was “insulting and offensive.”
Ido Katri, a scholar who studies gender variance in law, said the new policy was an impressive achievement. “It puts the people who most need our protection at the center – transgender women and men who have been pushed to the margins because of a complete lack of access to resources and opportunities,” he said.
Nevertheless, he added, the process is not yet complete, “because the Prison Service still insists on distinguishing between those who have finished the [gender affirmation] process and those who haven’t, even though there’s no justification for this in the life experience of transgender women and men.” He also criticized the policy of holding them separately for five days and subjecting them to invasive searches.
Chen Arieli, chairman of the Aguda, said, “Doreen Bilia has proven that rights are obtained by fighting. The transgender community is the weakest of the LGBT communities, and the battle for its rights is at its height.
“Within the community itself, it’s understood that the weakest groups are those who are poor, in prostitution and sometimes even wind up breaking the law,” he added. “We’re obligated to show responsibility for their rights, even and especially at those moments.”