First study on the position of transgender detainees in the Netherlands

In an interview with NRC newspaper, Pauline Jacobs – who is a detention law expert at Utrecht University's Willem Pompe Institute for Criminal Law and Criminology – speaks about her pioneering research into the position of transgender detainees. She was the first to attempt to map the size and circumstances of the group of transgender detainees in the Netherlands. "Nothing appeared to be known. I didn't find any statistics. In fact, I found no information at all," Jacobs says.

The research follows public discussion about possible implications of the proposed amendment to the Transgender Act. If the requirement for a so-called 'expert statement' from a doctor or psychologist is dropped, people could more easily change the gender listed on their identity papers. A trans woman with male gender characteristics could then pose a risk when placed in a women's prison, goes one of the arguments of those who are against the amendment. According to Jacobs, this concern is not the most pressing issue now: "The extreme alertness to that risk distracts from concerns about the position of transgender detainees themselves, which we are dealing with right now."

In NRC, Jacobs explains how she conducted her research. When it transpired that the Custodial Institutions Agency (DJI) did not want to cooperate, she tapped into her own network, talking to, among others, five former prison directors, four lawyers who assist transgender clients, members of the supervisory committees of correctional institutions, a policy advisor of an interest group of transgender people, and also two transgender ex-prisoners themselves. Jacobs argues that the population of transgender inmates should be mapped more systematically, as it hardly happens now. "The Life in Custody Study is a large existing survey conducted by the DJI and Leiden University among all detainees in the Netherlands. It covers how prisoners are doing and what their relationship with fellow prisoners and staff is like. I would like to add a question to it, about whether someone identifies as transgender, in order to get much more insight into their numbers, and how they experience the detention period." 

I deliberately did not share it; the staff already knew. But with fellow inmates, you don't know what will happen if they know.

The recent article Jacobs published about the research in the Dutch Journal of Criminal Law (Nederlands Tijdschrift voor Strafrecht) states that the actual number of transgender detainees is uncertain. It may well be larger than thought, as transgender inmates are afraid to present themselves as such for fear of lack of acceptance and exclusion (see quote above). Furthermore, prison officers are usually unaware that a transgender person is coming their way. There is also no policy framework they can fall back on, meaning staff have to make ad hoc choices from the moment the prisoner is subjected to a physical examination (visitation) on entry. Interestingly, the ex-prison wardens said such policies are not missed either. "I had enough leeway and authority and also possibilities, practical possibilities, to shape conditions in such a way that I felt I could take responsibility for a detention that was good for the [transgender] detainee under the circumstances," said one of them.

Jacobs does not see much point in general rules to prevent sex offenders from abusing the new Transgender Act. "It is not obvious, of course, to place a dangerous person who has a history of serious sex offences in a regime with many freedoms. But other people can also be dangerous. As a lawyer, I am reluctant to make general rules based on incidents; you have to assess each case individually." Currently, the role of individual prison officers is decisive in dealing with transgender people. "This group requires sensitivity, a custom approach. And I hope my research demonstrates that."