Prisons

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Allowing male prisoners to be housed in female prisons or prison units poses severe risks to the safety and dignity of incarcerated women and is ethically unjustifiable.

In January 2024, 6881 people were detained in Swiss prisons, of which 365 (5.7%) were women. There are three establishments exclusively for women (Dielsdorf, Hindelbank, La Tuilière), and 23 mixed establishments with special units for women. 

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In its 2024 analysis of the National Prevention Mechanism, the National Commission for the Prevention of Torture (NCPT) recommended that women should be placed in “facilities that are appropriate for them”, and that women “should only be detained in small mixed facilities that meet their specific needs”. The NCPT added that, since January 2007, article 46, para.1 of the Swiss Criminal Code, which provided for the separation of men and women in penal institutions, is no longer formally in force, however, “the separation of women and men in closed prisons is still applied without exception.” Surprisingly, the NCPT made no mention of the presence of a male prisoner in a Swiss women’s prison, an incident which occured in 2022. This incident was reported in the news on Swiss Television (SRF, November 22, 2022; RTS, December 3, 2022).

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Indeed, in 2022, a man was placed in a women’s prison in Dielsdorf/ZH, following the decision of its director, Simone Keller da Cunha Sarandão. She said: “Es geht um die Identität” (“it’s about [his] identity”). The man identified as a woman. After he was arrested in September 2022, he was initially housed in the men’s prison of Stans/NW. But Stans’s prison director, Stephan Rohr, said that he and his staff were not properly equipped to accommodate such a man. He and his staff had been informed by the responsible prosecutor’s office that the male prisoner wanted to be addressed as a woman. Apparently, in the men’s prison, the prisoner isolated himself, and director Stephan Rohr was worried he and his staff didn’t have enough resources to create an appropriate community for him. 

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The prisoner, who had intact male genitalia, was then transferred to a women’s prison. The media never revealed what kind of crime he had committed, so it could have even been sexual assault or rape. The article in SRF just wrote: “Insbesondere trans Personen sind (…) im Freiheitsentzug vulnerable.” (“Trans people in particular are vulnerable in deprivation of liberty”). The article in RTS wrote exactly the same: “Dans le monde carceral, les personnes transgenres sont particulièrement à risque (…) » (« In prison, transgender people are particularly at risk »), in order to explain the transfer of a male prisoner to a women’s prison. The RTS article also mentioned the recent document that provides guidance on dealing with incarcerated “trans” people: “Depuis l’an dernier, il existe un document cadre en Suisse.” (RTS, December 3, 2022).

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Unsurprisingly, once the male detainee arrived at the women’s prison, he was verbally attacked by female prisoners. Consequently, the prisoner expressed a desire to be placed back in a men’s prison. However, the female inmates’ reaction to discovering the presence of a male prisoner among them was not reported by all media; RTS journalists preferred not to report the incident, and insisted that there was no problem with placing this man in a women’s prison. They wrote: “[he] was perfectly able to integrate.“ (“[Il] a parfaitement été capable de s’intégrer.”) (RTS, December 3, 2022) 

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How can a man be placed in a women’s prison, since prisons are sex-segregated? Well, the Swiss Center of Competence for the Enforcement of Criminal Sanctions (SKJV/CSPSP), based in Fribourg, published a document in June 2021, with the title “Die Betreuung von LGBTIQ+ Personen im Freiheitsentzug” (“Care of LGBTIQ+ people in detention”). This document suggests that the “transgender” detainee’s self-determination of “gender identity” takes precedence, and that the detainee should therefore choose whether he or she wants to be placed in a men’s or a women’s prison. 

Femina Helvetica’s view on this document is as follows:

Femina Helvetica’s view on this document is as follows:

• The document claims to offer an insight into issues faced by LGBTIQ+ people (lesbians, gay men, bisexuals, “transgender” people, intersex and queer) in detention, but in reality, it only addresses issues faced by men who claim to be women, and gay men.

• At no point does the document address the concerns of female prisoners. Women are ignored in the study, save a short mention of lesbians (only to illustrate the L of LGBTIQ+). The document fails to show understanding of the reality that women and lesbians face.

• As the study is based on testimonies of staff who mainly work in men’s prisons, their observations are based on the behaviour and situations of male prisoners in men’s prisons. 

• As for violence in detention centres, the document only mentions male violence against male inmates (gay men and men who identify as women). The potential for male violence against female detainees to occur is not addressed, which …if a man (who claimed to be a woman) attacked a female inmate in a women’s prison. 

• We acknowledge that men who identify as “transgender” should be granted appropriate care and respect, but we strongly oppose the idea of placing them in a women’s prison, or in the women’s section of a mixed prison. 

• Concerning body searches, international and Swiss standards specify that they must be carried out by a member of staff who is of the same sex as the detained person (Criminal Code, art. 85. para 2). However, the Swiss Center of Competence for the Enforcement of Criminal Sanctions guidance suggests that due to their “gender self-identification”, men who claim to be women should be entitled to choose the sex of the staff member carrying out the body search. Yet again, the study neglects to take women’s point of view into consideration. It is unacceptable that a female prison guard should be obliged to handle a male prisoner’s body. Solutions that respect the dignity of a female officer are not offered.

• The document mentions a recommendation by the European Committee for the Prevention of Torture (CPT), which stipulates that if a man who identifies as woman is incarcerated in a men’s unit, he should be offered activities that allow him to come into contact with detainees belonging to the sex he identifies with, i.e. women. Femina Helvetica does not believe that male prisoners who identify as women should have a special right to socialize with women. 

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We are of the opinion that international institutions, such as the United Nations and the European Commission, as well as Swiss institutions, should refrain from using the acronym “LGBTQ+”, as it does not refer to a homogenous group of people. Each letter represents a group of people with specific interests (lesbian, gay, bisexual, trans, queer along with the undefined ‘+’), but these interests often do not align. 

One oft-cited justification for transferring male “transgender” prisoners into women’s prisons is that these men would be unsafe in men’s prisons. As the Irish author and journalist, Helen Joyce, writes (Joyce, 2021, p. 165):”But are they?” She explains that in the UK, out of 84’000 male prisoners “eleven sexual assaults on [men who identify as women] in men’s prisons were reported in 2019” (Joyce, 2021, p.165). She writes: “It is estimated that one male prisoner in fifty identifies as a woman. (…) Most [of them] are held in [men’s prisons and have access to a] single-occupancy cell and privacy in showers. (…) It is hard to say how vulnerable [these men]are in men’s prisons. (…) Men who are young, gay or known to have abused children are also frequently targeted.” (Joyce, 2021, p. 165)

Femina Helvetica believes that Swiss institutions should develop strategies to safeguard vulnerable men in men’s prisons, including gay men, men who claim to be women, or young men. However, under no circumstances should men be placed in women’s prisons or in women’s units in mixed prisons. 

The National Commission for the Prevention of Torture (NCPT), in its 2024 analysis, wrote that “women’s needs are very different from those of men”, because of their sex-specific characteristics, and their vulnerability due to having suffered violence from men in the past. As British feminist Julie Bindel says, “the majority of female prisoners have experienced some form of male violence” (Bindel, 2021, p.68), and “prison is [often] less about punishment and more about protecting women from violent men” (Bindel, 2021, p.70). Men need to be exluded from these spaces in order for them to remain safe for women.

The man who was placed in a women’s prison in Dielsdorf in 2021 complained that he felt isolated in the men’s prison. Yet women who are unlucky enough to have been placed in a mixed establishment may also suffer from isolation. The National Commission for the Prevention of Torture (NCPT) recognizes that female prisoners face more difficulties and are more often discriminated against. In several mixed prisons, female prisoners remain locked in their cells for 23 hours, and only allowed a daily one-hour walk. Occupational activities, if available, are carried out in the cells. This is the case in the prisons of Delémont and Schaffhausen. While men have access to workshops and workstations, women can only do simple work in their cells, and often the tasks to be performed are very stereotypically female (embroidery, ironing, applying false nails, etc.). Sometimes the sports facilities for women are smaller and less well equipped than those for men. In some establishments, female prisoners have no or reduced access to the gym. In the prison in Zurich (a facility for pre-trial detention), female inmates have to share the sports ground with their male fellow inmates and therefore have only limited access to the exercise yard. 

The National Commission for the Prevention of Torture (NCPT) considers that these mixed prisons are “not suitable for women’s detention”. Women-only facilities offer a wider range of occupations and sports activities. If prison facilities in Switzerland need to improve detention for men who claim to be women and for gay men, they also need to create more suitable facilities for female prisoners. According to the Swiss Criminal Code, Art. 74, the “human dignity of the prison inmates (…) must be respected” while “account is taken of the gender-specific concerns and needs of the prison inmates”, (Swiss Criminal Code, Art. 75. para. 5) Therefore, women’s dignity can only be respected by men being kept out of their prison or unit.

The result of the revision of the process to change one’s sex in the civil status register in 2022 is that any man can now easily change the sex marker on his official documents to “female” by a simple declaration before the registrar. Femina Helvetica demands that no man, regardless of the sex stated in his legal documents, should be placed in a women’s prison or a women’s unit.

Links to supporting documentation:

1. National Commission for the Prevention of Torture’s rapport on Women in prison in Switzerland (July 2024)
   https://www.apt.ch/sites/default/files/2024-12/switzerland_-_fr_0.pdf

2. Swiss Centre of Competence for the Enforcement of Criminal Sanctions’ document called “Caring for LGBTIQ+ people in deprivation of liberty” dating 2021 (Here the German version). https://www.skjv.ch/sites/default/files/documents/Die_Betreuung_von_LGBTIQ_Personen_im_Freiheitsentzug_Grundlagenpapier.pdf

3. The RTS article “Les personnes transgenres incarcérées font face à un risque élevé de violence” (Incarcerated transgender people face a high risk of violence) published in the French-speaking news on Swiss Television, RTS, December 3, 2022
   https://www.rts.ch/info/suisse/13591395-les-personnes-transgenres-incarcerees-font-face-a-un-risque-eleve-de-violence.html

4. The SRF article “Trans Frau im Männergefängnis” (A trans woman in men’s prison) published in the German-speaking news on Swiss Television, SRF, November 22, 2022
   https://www.srf.ch/news/schweiz/lgbtqi-im-gefaengnissen-trans-frau-im-maennergefaengnis

5. Joyce, Helen, “Trans: Gender Identity and the New Battle for Women’s Rights”, 2021

6. Bindel, Julie, “Feminism for Women: The real route to liberation”, Januar 2021