Provisions on Placement of Transgenders in Prisons

PERTANYAAN

Recently, a transgender public figure has been in the spotlight because the police are confused about which cell to place her in. The confusion has indeed been resolved, as the court has determined this trans woman as a female. However, what if the transgender person is still legally male (there has been no legal stipulation yet)? Will he be put in a men's cell? Are there any special measures to protect him from sexual harassment?

INTISARI JAWABAN

Classification of prisoners based on sex only recognizes men and women. If according to law, the gender of a transgender inmate has changed to a female, then it is appropriate for her to be placed in a women's prison cell. Likewise, if she is still a detainee, then she will be placed in a women's detention cell.

However, if a transgender person is still legally male, then he will be placed in a men’s prison cell/men’s detention cell. In order to avoid sexual harassment, transgender persons who are still legally male should first be placed in special cells for a few days to adapt. In addition, they also need to have special supervision.

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Aturan Penempatan Transgender di Penjara which was written by Adv. Saur Oloan Hamonangan Situngkir, SH., MH., CLA., CIL., CPL., and was published on Wednesday, 11 March 2020.

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In fact, in Indonesia, there has been no transgender prisoner policy yet. However, if a transgender person has been legally determined by the court as a woman, then officials should place the person in a women’s cell.

Sex change/ gender change itself is a thing that is allowed by law. Article 56 section (1) Law Number 23 of 2006 on Population Administration (“Law 23/2006”) clarifies that:

The registration of other Significant Events shall be conducted by the Civil Registration Official at the request of the relevant Resident after a decision of the district court has obtained permanent legal force.

The meaning of Other Significant Events are events that are defined by the district court to be registered in the implementing agency, such as gender change.[1] The registration must be completed within 30 days of the receipt of a copy of the court order.[2]

If according to law, the gender of a transgender prisoner has changed to a female, then it is appropriate for her to be placed in a women's prison cell. Likewise, if she is still a detainee, then she will be placed in a women's detention cell.

However, if a transgender person is still legally male, then he will be placed in a men’s prison cell/men’s detention cell. As outlined in the article entitled Classification of Placement of Prisoners in One Cell in Correctional Institutions, the classification of prisoners based on gender only recognizes men and women.

In order to avoid sexual harassment, in our opinion, transgenders who are still legally male should first be placed in a special cell for a few days in order for the adjustment to take place first.

They also need to obtain special supervision, considering that the purpose of criminal law is fostering, not retaliation. By undergoing the legal process by the persons concerned, then they must obtain protection from sexual harassment.

After all, he is a citizen. Even though a court decision will ultimately declare him guilty of a criminal act, the rights and legal protections of a convict must still be granted in accordance with the prevailing laws and regulations.

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. Law Number 23 of 2006 on Population Administration as amended by Law Number 24 of 2013 on the Amendment of Law Number 23 of 2006 on Population Administration.

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[1] Elucidation of Article 56 section (1) Law Number 23 of 2006 on Population Administration (“Law 23/2006”).

[2] Article 56 section (2) Law 23/2006.