Issue link: https://maltatoday.uberflip.com/i/989894
16 maltatoday | SUNDAY • 3 JUNE 2018 INTERVIEW It has been described as a "hard-hitting ruling" which has exposed certain hitherto unseen realities of prison life in Malta. But from your clients' point of view... what is the significance of this week's Constitutional Court judgment? NF: In a nutshell, the Consti- tutional Court ruled that the treatment suffered by our clients amounted to inhumane and de- grading treatment: in the way they had been allocated to the male section, and the experienc- es they went through there. The ruling also said that, by disclosing their gender history, the prison authorities had violated the right to privacy: because the law very clearly states that one's gender history is private, and should not be disclosed... especially where the disclosure could lead to abuse, as in fact happened. The court also specified that their rights were violated, not sim- ply in an abstract context... but specifically because they were transgender women. So [the hu- man rights violation] was on the basis of discrimination... As a result, the court awarded your clients the sum of 5,000 Euro each – 30,000 Euro in total. Before turning to the wider implications of the ruling: do you think the compensation is sufficient, given the severity of the human rights breaches? NF: In an abstract sense, we don't think it's enough. But in the Maltese context, where the courts have certain parameters by which they give compensa- tion, we're comfortable with the amount. Our clients are still discussing with us whether they are comfortable or not, so I can't comment on their behalf... CC: But I think what our clients really wanted was recognition of what they had suffered. That was the fundamental issue; which they actually got, and even the fact that the government will not be appealing the verdict is an even bigger confirmation, for them, that there was a serious breach. And government has acknowledged this... NF: [Nodding] Our clients had spent years, some of them dec- ades, recounting their stories to the media, prison authorities, ministers, religious authorities... and constantly being either dis- believed, ignored or set aside. So finally you have an independent authority – and a very high court at that – looking at the facts as presented, and not only acknowl- edging their side of the story... but saying, 'It's true: we believe you'.... and that obviously, what happened should not have hap- pened. The mere acknowledge- ment that their story was heard, and given a sense of reality... that, for them, meant a lot. But the same ruling also exposes some apparent anomalies. For instance: the Gender Identity Bill was passed in 2016, and a policy was then drawn up for its implementation in prison. And yet, the complaints persisted even afterwards. Does this mean the policy was a failure? NF: The case obviously comes in a much wider context. We've been talking to these women for a number of years, and we've also been talking to government to try to improve their situation: from many years before the law was passed. So even in a situation when they were unable to change their ID documents, we still in- sisted they should be moved to the female section. We told gov- ernment: ignore the documenta- tion, and go by their identified gender: especially their appear- ance. Because that, ultimately, is what was at the root of the prob- lem... But let's face it: it can't be an easy problem to solve. The proposed solution was to transfer transgender inmates to the women's section, because they 'identify as women'. But what if the existing inmates object, on the grounds that they themselves don't identify the newcomers as women? NF: Dealing with transgender inmates is a problem all prison authorities face. It's not just a Maltese problem, but a prob- lem everywhere... because of the issues you raised, with regards to other inmates and how they might relate with transgender people; and even with regard to security officers who have to conduct body-searches, etc. There's an evident concern that we acknowledge and appreciate. We feel, however, that once the law acknowledges your right to identify your own gender – irre- spective of your physical charac- teristics, but based on your inner feelings about who you really are – then the institutions need to adapt their systems to make sure your rights are fundamentally respected. We need to underline that gender is an inherent part of your identity; you cannot give it up for the sake of an institution that you're living in. The struc- tures need to adapt themselves to your rights... the primary prin- ciple being your human dignity. So what we advocated was: move them to the female section; but obviously look into issues such as training for security officers, to make sure they're comfort- able with the situation, and can deal with it. Today there are many security officers who have received training, and who have dealt with transgender inmates, and they're relatively comfort- able with the situation. And if security situations arise vis-a- vis the other inmates, deal with them on a case-by-case basis. But don't assume there are going to be problems; and on the basis of that assumption, deny people their rights simply because of a fear you might have... One aspect that emerges clearly from the ruling is that the degrading treatment did not come solely from other inmates, but also from prison warders; and that the refusal to confront this problem pre-2016 seems to reflect an ingrained prejudice against transgender people on the part of the prison management as a whole. How true is this perception? NF: Again, just to give some context: the experiences our cli- ents recounted go back many, many years. There's a long list of complaints dating back 20 years, in some cases. Historically, the starting point would have been in the 1980s, and the end-point would be quite recently, when the case was filed. From the in- stitution's perspective, even once the law was adopted there still remained a level of transphobia in prison. And I think there's also a level of homophobia, racism, xenophobia... the prison envi- ronment does have a number of elements which are problematic for people who don't generally conform to society. In prison, obviously, their vulnerability is exacerbated. That is why we were really keen on seeing the policy adopted after the law. Because the policy tells prison authorities: we have a law; you need to take steps to make sure the law is respected... with regard to how people are called; what pronouns are used; what name- calling you use during the roll- call; what type of hairdresser can people use, what clothes can they wear... elements which some might think are superficial, but are really about how your gender is respected in a particular insti- tution. Meanwhile, those who did choose to be transferred to the female section found that In a damning indictment of Malta's prison conditions, the Constitutional Court has just awarded seven transgender inmates EUR30,000 in compensation for decades of 'inhumane and degrading treatment' at the Corradino Correctional Facility. Their lawyers NEIL FALZON and CARLA CAMILLERI, of Aditus Foundation, outline the implications of this ruling for human rights We need to underline that gender is an inherent part of your identity; you cannot give it up for the sake of an institution that you're living in Dignity is a human right Raphael Vassallo rvassallo@mediatoday.com.mt