RISK FACTORS AND SITUATIONS If this is the case, monitors should ascertain whether this restriction is applied in agreement with the detainees concerned, as punishments on the basis of sexual orientation or gender identity may easily be presented as a ‘protective’ measure. If conjugal visits are authorised only for heterosexual detainees, monitoring bodies should make recommendations aimed at allowing all detainees to be given this opportunity on an equal basis in line with the principle of non-discrimination. In October 2011, the Supreme Court of Costa Rica ruled in favour of a detainee who had lodged a complaint about discrimination in the rules of the penitentiary system, which stated that ‘intimate visits’ could take place only with a person of a different sex. Homosexual detainees in Costa Rica now have the possibility of intimate visits on an equal basis with heterosexual detainees.67 ‘States shall […] ensure that conjugal visits, where permitted, are granted on an equal basis to all prisoners and detainees, regardless of the gender of their partner.’ Yogyakarta Principle 9 (E), The right to treatment with humanity while in detention LGBTI detainees may be refused gender-appropriate healthcare or even face ill-treatment by health professionals. International human rights bodies have reported verbal abuse and public humiliation, psychiatric evaluations, sterilisation and hormone therapy, as well as the practice of ‘subjecting men suspected of homosexual conduct to non-consensual anal examinations to “prove” their homosexuality’. The Subcommittee for the Prevention of Torture, the Committee against Torture, the Special Rapporteur on torture and the Working Group on Arbitrary Detention have all strongly criticised such medical examinations. 68 Access to basic healthcare should never be denied by detaining authorities, but the issue of special care, such as medical treatment for LGBTI detainees, is more controversial. LGBTI persons who have been victims of sexual violence may receive inadequate or no medical treatment for any resulting injuries, let alone the psychological support and mental health care necessary following incidents of sexual violence. Prison healthcare should provide counselling for mental health issues as a consequence of sexual violence or rape. In addition, confidential treatment for sexually transmitted infections (STIs) including HIV should be accessible to all detainees on a non-discriminatory basis.69 Access to psychological support should be available to transgender persons on an equal basis with other detainees. Regarding hormonal and/or surgical treatment, the principle of equivalence of care requires that such treatment be provided if it is available in the community70 and that detaining authorities should ensure that the treatment is not discontinued by the deprivation of liberty or the release of the person concerned. As the French General Inspector of places of deprivation of liberty has described, ‘any detainee identifying him or herself as the other gender should be given the possibility of being accompanied in this process and be taken in the charge of the medical services of the detention facility […]. Throughout the treatment, the person should benefit, whenever he or she needs it, from psychological counselling within the prison’.71 In the US, a federal judge for the District Court of the District of Massachusetts ruled that an inmate serving a life sentence without parole must be granted gender reassignment surgery as the only possible treatment for her gender identity disorder.72 It is worth noting in this context that the revised Standard Minimum Rules reiterate patients’ rights and principles of medical ethics, including prisoners’ autonomy and the principle of informed consent (Rule 32). Furthermore, Rule 25 clarifies that the role of health-care personnel is the evaluation, promotion, protection and improvement of the physical and mental health of prisoners. 67. See Acción de inconstitucionalidad contra el artículo 66 del Reglamento Técnico Penitenciario, Decreto Ejecutivo Número 33876-J, Exp: 08-0028490007-CO, Res. No. 2011013800. 68. Eighth annual report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 26 March 2015, para. 67 and 71. 69. UNODC, Handbook on prisoners with special needs, 2009, p108. 70. See Rule 24(1), revised Standard Minimum Rules for the Treatment of Prisoners. 71. Contrôleur Général des lieux de privation de liberté, Avis du 30 juin 2010 relatif à la prise en charge des personnes transsexuelles incarcérées. 72. United States District Court, District Court of Massachusetts, Memorandum and order on eighth amendment claim, 4 September 2012. After this judgment was reversed by the First Circuit en banc court on 16 December 2014, the case is now pending at the Supreme Court following a petition for writ of certiorari (http://www.glad.org/uploads/docs/cases/kosilek-v-spencer/cert-petition.pdf (accessed 20 November 2015). Penal Reform International | LGBTI persons deprived of their liberty: a framework for preventive monitoring | 13