Danish Supreme Court rules on trans woman’s prison rights and body searches

The Danish Supreme Court ruled today that it is not a violation of human rights for a trans woman, who has undergone a legal gender change, not to be placed in a women’s prison or subjected to body searches by male prison staff. In their ruling, the Court emphasized that the trans woman is biologically male and has been convicted of the rape of a woman, thus raising safety concerns. They stated that body searches conducted by male staff are in line with the penal enforcement law.

Frederik Blicher, the trans woman’s attorney, expressed that while they did not expect a different outcome regarding her placement, they were surprised by the ruling on body searches. The legal gender change refers to the process through which a person changes their official gender designation, not to be confused with gender-affirming treatment, which involves medical or surgical interventions.

Blicher noted that European human rights court rulings indicate it is a breach of Article 3 of the European Convention on Human Rights for inmates to be body searched by staff of the opposite sex. Article 3 states that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Despite the Supreme Court’s ruling not supporting their stance, Blicher argued that their perspective was not poorly articulated but rather disagreed upon. He highlighted that several fundamental issues remain unresolved regarding how the penal code and treatment of transgender and intersex individuals should be interpreted within the prison system.

With the Supreme Court’s decision final in Denmark, the matter may still be raised before the European Court of Human Rights in Strasbourg. Blicher expressed hope that the European court would take up the case, noting that he could not find comparable rulings from other countries regarding the biological basis for placement or searches.