Detention and people in situations of vulnerability Currently, to transfer a transgender prisoner to another prison, a gender change first has to have taken place in the register of births. In its report issued on 6 November 2015, the CPT recommends that Austria enables trans-persons in detention to access trans-specific hormone and legal gender recognition and, additionally, to develop non-discrimination policies. The committee noted that “gender reassignment procedures such as hormone treatment, surgery and psychological support are available to transgender persons in Austria”; therefore, the same rules should apply to transgender individuals in prison.263 In a ground-breaking May 2016 judgment by the Regional Court for Criminal Matters in Vienna, the court ruled that transsexual persons have a right to sex change treatment in jail and ordered the penitentiary to initiate the treatment. 264 In Ireland, transgender prisoners are placed in prisons based on their sex characteristics, in violation of their gender identity. Notwithstanding, Irish courts have the power to place a prisoner in a male or female prison by issuing a warrant. ECtHR on detention and gender reassignment The ECtHR has not yet examined questions relating to the special needs of detained transgender persons in EU Member States. However, such cases have been communicated to the respective governments, and are currently pending. In one of these cases, the applicant  – who had gender reassignment surgery (male-to-female) prior to her conviction  – was sentenced to two years’ imprisonment. The applicant was refused hormone replacement medication by the authorities despite numerous complaints and the fact that this life-long therapy was required after her surgery. According to the applicant, the discontinuation of her hormone therapy led to the development of “gender dystrophy”, meaning the return of the secondary sexual (male) characteristics. Her mental condition also allegedly deteriorated significantly. Authorities suggested that she should pay for the hormone therapy herself, which she could not afford. 263 Council of Europe, European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment (CPT) (2015), para. 116. 264 Rechtskommitee LAMBDA (2016). In addition, she was subjected to threats and violence from other inmates, prompting her segregation from the general prison population to keep her safe. After a  year, the applicant applied for provisional release, referring to her poor state of health and inability to receive hormone replacement therapy. Her request was dismissed on the ground that her condition was not included in the list of illnesses calling for a release. The applicant complained about the absence of necessary medical treatment, and the lack of an effective remedy to complain about the violation. Moreover, she complained about the conditions of her detention as a result of the authorities disclosing information about her transsexuality. Another case concerns a  transsexual detainee who was refused funds for gender reassignment surgery despite very strong medical indications. The judgments are currently pending. The cases were communicated to the respective governments under the prohibition of torture and inhuman and degrading treatment, as well as under the right to respect for private life. Source: ECtHR, Bogdanova v. Russia, No. 63378/13, 19 February 2015; D.Ç. v. Turkey, No. 10684/13, 15 November 2013 Conclusion and FRA Opinion While detention can generally have negative effects, the impact can be greater for persons in situations of vulnerability, such as children, persons with disabilities, and lesbian, gay, bisexual, transgender and intersex (LGBTI) persons. Discrimination is only one of many risks that transgender persons, for example, face in detention. Studies show that there are also problems with insufficient medical attention and with abuse, including sexual assault. Such vulnerabilities must be given due consideration, and detention should only be used very exceptionally. Rule 2 (2) of the UN’s Nelson Mandela Rules states that “for the principle of non-discrimination to be put into practice, prison administrations shall take account of the individual needs of prisoners, in particular the most vulnerable categories in prison settings. Measures to protect and promote the rights of prisoners with special needs are required and shall not be regarded as discriminatory.” Rule 5 (2) notes that “[p]rison administrations shall make all reasonable accommodation and adjustments to ensure that prisoners with physical, mental or other disabilities have full and effective access to prison life on an equitable basis.” The EU Charter of Fundamental Rights, in particular Article 21 on non-discrimination and Article 20 on equality before the law, is also essential in this context. Additionally, the ‘best interests of the child’ should be of primary consideration – as prescribed by, for instance, Articles 3 and 9 of 81