LGBTI Persons Deprived of Liberty: Overrepresented, Extremely Vulnerable and De Jure Invisible

Abstract

Criminalizing non-normative sexual orientations and gender identities, leads to the arbitrary deprivation of liberty of LGBTI persons and is linked with the range of abuses LGBTI prisoners experience. Whether or not the deprivation of liberty of LGBTI persons is legitimate, LGBTI persons—or persons perceived as belonging to this group—in detention often find themselves at the bottom of the ‘prison hierarchy’, which makes them particularly vulnerable to various human rights abuses, both from fellow inmates and at times from prison guards. The human rights abuses range from discriminatory treatment and humiliation to sexual intimidation and disproportionate (sexual) violence. This chapter aims to provide a descriptive, yet critical overview of the (de-)criminalization of non-normative sexual orientations and gender identities, as well as the prison conditions of LGBTI individuals across the continents. Per regional human rights system, i.e. the European, Inter-American, African, and UN human rights system, the responses to and efforts to address both issues will be examined. It will become apparent that the problems LGBTI prisoners face are manifold, and that they are moreover rendered somewhat invisible due to the limited, and more often completely absent caselaw at the international level. The chapter will also provide recommendations to enhance the situation of LGBTI prisoners and to increase their visibility in the eyes of the law.