Limerick Prison: The Rights of Female Prisoners

In his latest article for The Countess, Gearóid Ó Loingsigh examines the OIP’s (Office of the Inspectorate of Prisons) latest report into conditions in Limerick Prison. He questions whether the report has been thorough enough in addressing the particular needs of women with regard to issues such as access to children, mental health care, and alternatives to imprisonment, given that most are non-violent petty criminals and one third of them are on remand.

He also raises concerns about the current policy of housing two violent trans identified males among the female population, stating that not only are they men who chose to be in the female estate, they are also violent offenders, one of whom has ten convictions for sexual assault and one conviction for abuse of a minor, and the other – the infamous Barbie Kardashian – has stated his desire to harm women.

With regard to women prison officers, he questions the OIP’s assertion in the report that ‘international best practice indicates that transgender prisoners should be given a choice regarding the gender of the person conducting a search, and it should be at their discretion whether or not a male prison officer is present.’

The Countess made enquiries with the OIP on this matter as to which international best practice they are referring to. The OIP responded, citing a report titled ‘The Mapping of Good Practice with Regard to the Housing of Transgender Prisoners’. However, this report, published in Thailand, is not officially recognised by the UN and nowhere in the report does it identify any best practices – it is merely a literature review of current practices. The OIP also refer to a set of principles drawn up by trans activists in Indonesia known as the Yogyakarta Principles.

The OIP has a real ability to affect prison policy, and its endorsement of sloppy research and dubious aims represents a real danger to the rights and safety of women.

The Office of the Inspector of Prisons (OIP) has recently published a report on Limerick Prison. Not surprisingly, given the current situation, it is titled Covid-19 Thematic Inspection of Limerick Prison, though it actually deals with issues other than Covid-19 that came to its attention, such as the specific issues facing women prisoners and also what the OIP refers to as “transgenders”, i.e. males who say they are women or what some groups refer to as trans identified males (TiMs). The term “TiMs” will be used in this article unless quoting directly from the report or other documents that use the misnomer of “transgenders”.

The report details a number of situations that show that despite some progress made, prisons are terrible places to be held in and prisoners are third rate citizens of the country. Many of their rights have been suspended using the excuse of Covid-19 and possible contagion.  The report accepts that social distancing in prison is difficult but also points out that even in a pandemic, prisoners have rights to exercise and fresh air, a right denied to some in the prison as part of quarantine or isolation measures adopted.

The dilapidated state of D Wing comes as no surprise to anyone who has followed prison issues in Ireland, nor the fact that the degrading practice of slopping out still continues in Limerick Prison.

‘The practice of “slopping out” continued for prisoners accommodated on the A wing of the men’s prison. It is the view of the Inspectorate that this ongoing practice constitutes inhuman and degrading treatment. In-cell sanitation is necessary in order to fulfil basic human rights. The COVID-19 pandemic has brought additional focus on the importance of hygiene & sanitation as it is key in maintaining and protecting human life. The practice of “slopping out” should have no place in any Irish Prison and should be eradicated; this has been noted on numerous occasions by the CPT [European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment] and the Inspectorate.’^[1]OIP (2021) ‘Covid-19 Thematic Inspection of Limerick Prison’, 6-7 April 2021, Ireland, p. 18

Many of the other problems noted in the report are typical of prisons everywhere. It is not only the case in Ireland but practically all over the world that reports on prisons and even court decisions need to be restated time and time again. Sometimes when progress is made it is undone by other measures, or the situations that required correcting are allowed to rise again. The poor maintenance of prisons is not inevitable, but rather occurs due to the low level of priority that prisons and prisoners have in wider society.

Within prisons, women occupy an even lower rung in priorities than the average male prisoner. They are demonstrably given less importance than even sex offenders. This can be seen in the treatment of women noted in the OIP’s report itself and also in how the OIP approaches the issues of TiMs and women in prison, and the dangerous path for women it would like the Irish Prison Service to embark on, citing supposed “international best practice”.

One of the problems the OIP identifies for women is that Limerick Prison is currently undergoing expansion and the building work has forced women to share a yard with men, which they use at alternating times. The yard is, however, overlooked by cells occupied by men.

‘It is of concern to the Inspectorate that a number of women prisoners reported being uncomfortable entering the A Wing yard as it was overlooked by the cells of male prisoners. This should be considered within the context of guidance in the Revised European Prison Rules (Rule 34.2) which states: “the authorities shall pay particular attention to the requirements of women, such as their physical, vocational, social and psychological needs, as well as caregiving responsibilities, when making decisions that affect any aspect of their detention.” Further, the CPT has recommended that prisons “offer all women prisoners at least two hours of outdoor exercise a day under decent conditions, where they can associate out of hearing and out of sight of male prisoners.'^[2]Ibíd., p. 7.

And so it should be, but the Irish Prison Service, the OIP and the Irish Penal Reform Trust seem to have no problem with women having to share facilities with males who are TiMs. Indeed, in such cases, the rights of the TiMs would seem to trump those of the women.  The OIP dealt with this issue and the specific needs of TiMs housed in the female estate of Limerick Prison in their report. Before looking at what recommendations they make, we should be clear that all prisoners are entitled to their dignity, their health, both physical and mental, and to be free from all and any threats of violence or discrimination.  This applies to the women and also to the TiMs. However, women have a right to be free from threats of violence, and their psychological well-being should be protected, something which is considered to be of secondary importance when discussing the issue of TiMs.

The OIP interviewed two TiMs held in the female estate and dealt with their complaints, some of which were well founded, while others show that the OIP is willing to place the safety of staff and female prisoners at risk in order to accommodate them. The report can be confusing in parts as it refers to the TiMs on a number of occasions as “women”, and given they are held in the same part of the prison as women, the lack of clarity in terminology used is sloppy, perhaps even ideologically so on the part of the OIP, and does no one any favours, not even the TiMs.

A number of complaints were made by the TiMs, one of which is based in law and should be dealt with, as it applies not only to them but to all prisoners in Ireland and beyond, and that is the issue of isolation and solitary confinement. The TiMs are correctly separated from the female prisoners, but even in such cases, prolonged lock up of 23 hours a day amounts to torture and is not acceptable. The OIP also raised the point of solitary as a measure used to combat Covid-19 as also being unacceptable. On the point of the TiMs, however, it cannot be forgotten or downplayed that not only are they men who chose to be in the female estate, they are also violent offenders, one of whom has ten convictions for sexual assault and one conviction for abuse of a minor, and the other  – the infamous Barbie Kardashian – has stated his desire to harm women. They represent a danger to the female prisoners and, given the nature of their crimes and stated intentions, they represent an even greater danger than the average male prisoner does. As such, under no circumstances should they be anywhere near female prisoners. Neither should they be left alone with female prison officers, though the OIP seems to think this is unproblematic and took the following complaint:

‘The women [sic – TiMs] raised concerns that when searches were being conducted a male officer was present in addition to a female officer. International best practice indicates that transgender prisoners should be given a choice regarding the gender of the person conducting a search [emphasis added]. The search should be conducted by a person of the appropriate gender, with minimum interference. The Inspection Team was informed of occasions where a small number of prison officers referred to the women as “he/him”. However, prison management informed the Inspection Team that once this was brought to the attention of management by the women [sic – TiMs] the matter concerned was resolved. The Inspectorate shares the view of the CPT, which has recommended that “custodial staff should be reminded of their duty to respect the specific gender identity of transgender prisoners, in particular in terms of accommodation, clothing and by addressing them with their chosen name.’^[3]Ibíd. p. 34.

The issue of names is not that important. Names applying to one sex and one sex only is a cultural norm which has changed over time with certain names, and so Barbie Kardashian has the right to be called by that name, if indeed that is his legal name. However, the idea that staff should be forced to refer to men as “she/her” is abuse in the workplace (and everywhere else as well).  

The more important issue is the question of searches. Given the nature of the offenders concerned, who in their right mind would object to female staff having back-up during searches? Why should a female prison officer be left on her own in the presence of a sex offender who has sexually assaulted a number of women? I would imagine that even some male prison officers would rather not be left alone with them.

The OIP argues for searches to be carried out by a person of the same gender (sic). By this they mean TiMs should be searched by women, and they refer to “international best practice” in their recommendation. They cite only one document on this point. The Countess made enquiries with the OIP on this matter and the OIP confirmed that the reference to international best practice is as cited in a 2020 report by the United Nations Office on Drugs and Crime (UNODC), titled ‘Mapping of Good Practices for the Management of Transgender Prisoners’. This report was in fact published by the United Nations Development Programme (UNDP) in Thailand, though the UNODC’s name is also attached to it. That the OIP would cite this report as “international best practice” is surprising, given that it is not an official policy document of the United Nations Office on Drugs and Crime, nor indeed of the UNDP, and the first pages of it say as much:

‘The findings, interpretations and conclusions expressed herein are entirely those of the author(s) and do not necessarily reflect the view of UNDP. UNDP cannot guarantee the accuracy of the data included in this work.’^[4]UNDP (2020), ‘Mapping of Good Practices for the Management of Transgender Prisoners’. Bangkok, Thailand

This is a fairly standard disclaimer on certain types of documents published by the UN, the World Bank, the IMF, etc. The reason for this is that, unlike the Mandela Rules on the minimum standards for the treatment of prisoners ^[5]https://documents-dds-ny.un.org/doc/UNDOC/GEN/N15/443/41/PDF/N1544341.pdf?OpenElement, the Bangkok Rules on the treatment of female prisoners ^[6]https://www.ohchr.org/EN/ProfessionalInterest/Pages/BangkokRules.aspx (does not include TiMs) or the Tokyo Rules on alternatives to imprisonment ^[7]https://www.ohchr.org/documents/professionalinterest/tokyorules.pdf, it is not a resolution approved by the General Assembly of the United Nations. It is in fact a mere Literature Review and a very poor and sloppy one at that, as will be explained. Under normal circumstances it is a document that would pass unremarked, but the OIP has taken it as a reference point on best practice for the development of prison policy in Ireland, and has agreed with the Irish Prison Service on the development of “a national policy regarding the safe custody of transgender (sic) women and men” ^[8]OIP (2021), Op. Cit. p. 52.

The OIP justifies their recommendations by reference to the UN Literature Review and also to the Yogyakarta Principles. The latter of these documents is the easiest to deal with. Despite its lofty sounding name, it is really nothing more than a wish list and series of demands by trans activists. It has no legal validity, it is not a UN document, even though it is sometimes cited in UN documents, it has not been adopted by the UN General Assembly and has no more validity than a list of principles I could draw up now and attach as an appendix to the end of this article.

The Literature Review, as already stated, also has no real status. It is a poor document, though the authors were slightly more modest in their claims than the OIP and did not claim it to be “international best practice”. In fact, they said that amongst the limitations to their Literature Review was the fact that the “literature reviewed is extremely incomplete and sometimes contradictory.”^[9]UNDP (2020), Op. Cit. p. 6Not only was it incomplete, they actually reviewed very little literature: a grand total of 109 documents, 28 of which were newspaper articles. They further limited themselves to English language documents only, despite English not being the official or even working language in all of the countries and jurisdictions they looked at, which are listed as:

‘Argentina, Australia, Brazil, Canada, England and Wales (UK), Ireland, Italy, Malta, the Netherlands, New Zealand, Scotland (UK) and the United States, especially the state of California. Additional countries and jurisdictions were added to the analysis based on findings in the literature, including Colombia, Ireland, New York State and Texas, while the Netherlands was then excluded given the lack of relevant literature related to transgender prisoners. Special attention was given to documents pertaining to Thailand.’

 As can be seen, the Literature Review is quite limited in scope, with a special emphasis on Thailand, whose culture regarding the issue is very specific. Thailand is the only jurisdiction mentioned where it is claimed that there is a relatively high number of prisoners who are trans identified (2.6%). In some of the countries and jurisdictions reviewed, the numbers are significantly less than 0.1%.

Even where the Literature Review identifies what it terms as “good practices” (it doesn’t identify any “best practices”), none of these good practices are to be found in all or even a majority of the countries reviewed. There is a lot of cherry picking going on, which they understate as follows:

‘That said, it is clear at the conclusion of this global review that no one country or jurisdiction has implemented the best practices to address all issues that transgender prisoners face. In some cases, the literature remains vague about which approaches are indeed good practices, which are free of risks, and which are always fully effective. In that sense, the ideal combination of policies and practices for each jurisdiction or country should be the result of a negotiation between relevant stakeholders informed by evidence, including the content of this report.’ ^[10]Ibíd., p. iv,

For example, on the issue of the escorting of TiMs, the Literature Review states that:

‘Only in Australia, specifically in New South Wales, do policies and procedures provide guidance on escorting transgender prisoners. The NSW policy allows for transgender prisoners in women’s facilities to be escorted with other women prisoners on the condition that there are no safety or security concerns. In a male facility, however, transgender prisoners are to be kept separate from all other prisoners during escorts to avoid the risk of physical or sexual assault by other prisoners in transit…

Given the potential drawbacks of a rigorous blanket escorting policy for transgender prisoners, it is most appropriate to consult the transgender prisoner to determine whether they would prefer to be escorted or not, and align the approach based on the individual prisoner’s choice.’^[11]Ibíd., pp 12 & 13.

Alarmingly, it is up to the TiM to decide whether to be escorted or not; the female prisoners are not to be given such a choice when they are in the presence of these men. Prisons are supposed to guarantee safety for all, but only some are to be able to demand it and there are no prizes for guessing who is not included in this “inclusive” policy. But as is clear, this particular recommendation on good practice only actually applies in one part of Australia. On other issues we also find that the recommendations on good practice are to be found in less than a handful of the already limited number of countries and jurisdictions looked at.

On the question of searches, which the OIP referred to in their report, the Literature Review states that: “It’s important for officers to understand that these procedures are adopted to prevent abuse or unnecessary trauma to prisoners.”^[12]Ibíd., p.24No mention is made of female prison officers having to search men with their genitalia intact who are aroused by the procedure and the trauma this may inflict upon the prison officer. Some are more equal than others, as Orwell put it.

The Literature Review advocates for a whole series of measures, and by advocates for, I do mean proactively argues for, as it is a Literature Review with an awful lot of stated opinions that are never explained or justified. Amongst the measures it advocates for is the housing of prisoners in the estate they choose, stating that “good practices will be those that allow transgender prisoners to participate in the decision regarding their housing in prisons, where they have a choice in the selection of the best possible housing options”. No mention is made of the right of females to object.

There is one recommendation made in the Literature Review which, if applied across the board to all prisoners, would make prisons more bearable. There are few examples in the world of prison authorities systematically consulting prisoners as a right. In some countries political prisoners, both of the armed and unarmed variety, have been able to force prisons to negotiate with them due to their numbers, but rarely has this happened as part of national policy and even less so with ordinary prisoners, who rarely organise in such a manner as to force the prison authorities’ hands. However, it is a basic democratic right that groups in society be consulted on measures that affect them, and this should include prisoners – all prisoners, including women, not just what the Literature Review refers to as “transgenders”. 

But what would happen in Ireland when the inevitable clash of opinions arises between TiMs demanding access to the female estate and women saying no? The likely answer is that the TiMs would get their way, because the Irish Prison Service has either been bullied into or bought into the delusion that TiMs are women, as is clearly the case with the OIP.  If you accept that TiMs are in fact women, then all bets are off and the safeguards for women are the proverbial baby to be thrown out with the bathwater.

Any discussion on TiMs in prisons must be based on evidence and real research, and must always uphold the rights of women. The document the OIP holds up as “international best practice” contains no such thing. It even refers to the Bangkok Rules, which are clearly designed for women, never use the term “transgender” and use the term “gender” as synonymous with sex, e.g. the gender specific needs of women. The OIP has a real ability to affect prison policy, and its endorsement of sloppy research and dubious aims represents a real danger to the rights and safety of women. 

The women in Limerick Prison would have been better served with greater attention on issues, some of which are dealt with in the report, such as access to children, mental health care, sanitary towels, and the OIP would have done them a greater service had it ever even mentioned the Tokyo Principles on alternatives to imprisonment, given that most are non-violent petty criminals and one third of them are on remand. Such measures would reduce overcrowding, exposure to Covid-19, unnecessary mental health stresses, and would inevitably represent a lesser strain on the public purse than imprisonment. But the OIP thinks the rights of male sex offenders and others are of greater import. A thoroughly disappointing report.

Gearóid Ó Loingsigh
@gloingsigh
www.equipopueblos.com

About the author: Gearóid Ó Loingsigh is a political and human rights activist in Latin America and has published a number of reports on prisons in Colombia. Prior to the Covid-19 pandemic he regularly visited prisons in Bogotá, Medellín, Cúcuta, Bucaramanga and Valledupar to carry out workshops with prisoners. Gearóid has given talks to and workshops with grassroots rural and student based organisations on prison issues and also conflict and development.