A group of transgender inmates have won a constitutional case against the prison authorities, with a court awarding them €5,000 in damages after ruling that their rights were breached by the fact that they were being mistreated and held with male prisoners.

The seven inmates, some of whom had transitioned from the male gender to the female, all lived their lives as females and identified as such. They filed the court case, arguing that the prison authorities were insisting on treating them as males.

Some of the group were offered a choice to move to the female section of Corradino prison, but as this would entail them losing the opportunity to work and study, they declined. The inability to work would mean they could not afford hormone therapy.

The female inmates and warders were also hostile to them and so they decided to stay in the male section, even though some of them had to share a cell with a male inmate.

The situation led to ridicule, insults and vulgar sexual innuendos from both their fellow inmates and the prison warders. They were constrained to use the men’s showers and would therefore wait until all the other inmates had washed, with one of their number standing guard. This meant that they would often have to forgo washing altogether. They had no personal security and would be subjected to insults and “continuous sexual abuse and violence”

The inmates argued that the situation breached their rights to private life and constituted inhuman and degrading treatment.

Instead of creating a dignified and secure environment, the prison authorities had “knowingly and repeatedly” placed them in situations where they were at high risk of sexual and psychological violence.

The defendants argued that they had made efforts to accommodate the prisoners’ needs by allocating different shower times. They had received no reports of abuse by the guards or other inmates, they claimed.
They further rebutted the claims, by saying the minister was not the correct defendant and that the prisoners had not exhausted their ordinary remedies before resorting to Constitutional action.

The court noted that the prisoners had been admitted at a young age and had suffered greatly over the period of their detention. It upheld the defence’s first argument, saying that the correct defendant should have been only the prison director but not that the inmates had failed to exhaust their ordinary remedies.

Making many references to European and local case law, judge Silvio Meli said the treatment suffered by the plaintiffs fell within the parameters established by Strasbourg for a breach of their rights.

It observed that the cell allocated to one in the female section of prison was filthy and used as a store room. The court added that the treatment suffered at the hands of the guards and inmates was “truly disgusting” and did not bear repeating.

The inmates had been offered a Hobson’s choice in either losing their education and income opportunities or their safety, said the judge.

Although they were in prison to repay their debt to society this did not mean that they were unworthy of respect for their basic human dignity. It was plain to see that they had suffered degrading and discriminatory treatment on account of their gender, which had an adverse effect on their wellbeing, said the court.

The judge ordered the director of prisons to pay each of the seven inmates €4,000 for the breach of their rights, together with €1,000 each as damages to their personal dignity.

Dr Neil Falzon and Dr Carla Camilleri from aditus foundation, and Dr Cedric Mifsud from Mifsud and Mifsud Advocates assisted the inmates.

Government statement

"With reference to the seven trans inmates that were held in the wrong gender section at the Corradino Correctional Facility, the government points out that it will not appeal the decision of the Constitutional Court and has in fact already implemented further measures to change the pre-existing system which catered for such injustices. It is pertinent to note that the Court has recognised efforts already made by the Facility’s administration including the adoption of a dedicated policy and adequate gender diversity training for prison wardens."

"Today’s policies clearly outline the procedures to be followed by the correctional services in the event of a trans, gender variant, or intersex inmate brought into the Facility and enable all inmates to be treated fairly and without discrimination. Through such policies the government has facilitated compliance with international and European laws. The government has also introduced a specific legal provision to ensure that inmates who are unable to change their legal documents in their home country are still able to be accommodated in prison according to their lived gender. Additional efforts and resources in this regard will be made available to ensure that the human rights of all inmates are protected and laws are upheld with respect to dignity, equity, and social justice."