How much protection do the new UN Standard Minimum Rules for the Treatment of Prisoners offer LGBTI detainees?

By Eka Iakobishvili. Eka has worked as a human rights analyst and adviser for number of INGOS and IGOs, such as PRI, HRI, EHRN and UNODC. She was part of the Essex Expert Group meetings that worked on the SMRs in 2012-3, and was part of the NGO discussion at the 13th Crime Congress in Qatar, in April 2015. You can follow her on twitter: @Eka_ia

On 18-22 May, the UN Commission on Crime Prevention and Criminal Justice will adopt new and updated UN Standard Minimum Rules for the Treatment of Prisoners (SMRs). The SMRs were endorsed at the 13th Crime Congress in Qatar last month and it is expected that the UN General Assembly will adopt the rules by the end of 2015.

The original SMRs were adopted in 1955, at the 1st UN Crime Congress in Geneva with minor changes in 1957 and 1977. These rules have served as minimum standards for the protection of human rights of detainees and the management of prison systems for decades. The existing SMRs cover a wide range of issues, and protect ‘special categories of prisoners’, although no specific mention is made of Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) detainees.

The new and updated SMRs are widely regarded as a success, and many believe that they will strengthen the justice system. However, while the importance of five-years of intensive work of state delegates, diplomats, experts, professionals and activists all around the world should not be underestimated, it must be highlighted that the new SMRs do not recognise the specific needs of LGBTI detainees. It appears that the lack of protection extended to this category of detainees is a result of political sensitivities. Issues relating to sexual orientation and gender identity in detention have been among the most controversial during the high-level negotiations that informed the SMR drafting process.

Efforts have been made to redress this imbalance. For instance, heated discussions at the Essex Expert Meeting on the Standard Minimum Rules for the Treatment of Prisoners led Amnesty International to publish a briefing paper on ‘Discrimination and At-Most-Risk Groups in Prison’ mainly focusing on sexual orientation and gender identity. The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment in his thematic report on the SMRs also addressed the need to establish an explicit protection clause for lesbian, gay, bisexual, transgender and intersex persons in prison.

However, these efforts have met with resistance, and certain states threatened to hold up the whole SMRs review process if issues relating to sexual orientation or gender identity are included in the update.

In an attempt to overcome this impasse, advocates have sought to avoid explicit mention of LGBTI detainees, and have instead attempted to widen the concept of vulnerability in order to offer LGBTI detainees ‘special protection’ in detention under international human rights law.

These efforts, however, fail to provide full guarantees for the protection of LGBTI detainees. The proposed draft amendments do not specify who is considered to be ‘vulnerable’, leaving this to States’ discretion. The updated SMRs hold that states shall revise ‘protection and special needs of vulnerable groups deprived of their liberty, taking into consideration countries in difficult circumstance.’ Moreover, the specific wording of paragraph 6.3 proposes that ‘in order for the principle of non-discrimination to be put into practice, prison administrations shall take account of the individual needs of prisoners, in particular the most vulnerable categories in prison settings. Measures to protect and promote the rights of prisoners with special needs are required and shall not be regarded as discriminatory.’ By effectively choosing to leave the protection of LGBTI detainees to the discretion of states, the current document ignores the fundamental requirement that human rights protections be extended to all individuals on an equal basis.

However, it is perhaps important that we do not get caught up in the technicalities of the drafting process. Indeed, the very consideration of LGBTI detainees as ‘vulnerable’ persons requiring ‘special protection’ should be questioned. The classification of LGBTI detainees as vulnerable transforms these individuals into ‘others’. This discrete classification appears to goes against two landmark resolutions on ‘Human Rights, Sexual Orientation and Gender Identity’of theUN Human Rights Council which both affirm the universality, interdependence, indivisibility and interrelatedness of all individuals’ human rights.

These difficulties in the SMRs process could have been avoided by referencing the Yogyakarta Principles, which are clear on the application of human rights to sexual orientation and gender identity issues in detention. Principle 9 establishes that ‘everyone deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person. Sexual orientation and gender identity are integral to each person’s dignity.’ The principles address essential issues such as the allocation of LGBTI detainees to male or female prisons, specific health care needs and the provision of conjugal visits. None of these is acknowledged in the updated SMRs, either directly or indirectly.

The new SMRs will be adopted next week without addressing essential issues relating to LGBTI persons in detention. The progress made in the protection and promotion of LGBTI rights in UN human rights bodies has not yet reached criminal justice policy making. This is both a travesty and a missed opportunity. Penal reforms can never be achieved without fully acknowledging the human rights of all detainees, irrespective of their sexual orientation or gender identity.

Disclaimer: The views expressed herein are the author(s) alone.