“Regardless of their sex” or “biological differences”. An analysis of the European Court of Human Rights’ case law on women in prison

Abstract

<jats:p>Abstract In recent years, a growing attention for the specificities of female detention has spurred the adoption of a consolidated corpus of international soft-law tools, as well as reports on the conditions of incarcerated women. This momentum has not been paralleled by court decisions focusing on gender as a key issue in determining potential violations to prisoners’ rights, neither at a domestic nor at an international level. The paper will explore the gap between said legislation and policies and their implementation, particularly focusing on the case law of the European Court of Human Rights. The perspective adopted by this Court in interpreting the gender specificities of women in prison seems to be uncritically grounded in the vulnerability paradigm and the protection of motherhood. We will attempt to decode this normative ideology and to read it in context, and in comparison with the consolidated case law of the Court on the legal notion of vulnerability in prison, as well as with its case law on gender topics and the prohibition of discrimination. The analysis will highlight the most critical aspects of the traditional interpretation of gender equality in prison, as well the need to reconsider gender as a relevant issue in the protection of prisoners’ rights.</jats:p>

The “double punishment” of transgender prisoners: a human rights-based commentary on placement and conditions of detention

“…The European Prison Rules (EPR) (Rule 2) states: "Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody" and Rule 5 specifies: "Life in prison shall approximate as closely as possible the positive aspects of life in the community" (Council of Europe, 2020). These treaties adopt a universalistic approach to human rights, and according to critics are not gender neutral where prisons are concerned (Ciuffoletti, 2020). The provision of non-discrimination however within the Nelson Mandela Rules states (…apply to all prisoners without discrimination … the specific needs and realities of all prisoners) and is further emphasised in rule 2(2) which mandates prison administrations to "take account of the individual needs of prisoners, in particular the most vulnerable categories" (UN, 2015).…”

“…These treaties adopt a universalistic approach to human rights, and according to critics are not gender neutral where prisons are concerned (Ciuffoletti, 2020). The provision of nondiscrimination, however, within the Nelson Mandela Rules states "( [.…”