Between 2016 and 2018, the CPT carried out 55 country visits and produced 54 visit reports. As of December 2019, the CPT published 45 reports following these in-country visits conducted between 2016 and 2018.Footnote 6 Over the same three-year period, the CPT held 13 high-level talks with Council of Europe member states and issued Public Statements to Belgium and Russia. The analysis conducted in this paper considers reports issued by the CPT following country visits conducted between January 2016 and December 2018, which were made public up until December 2019. Drawing from all visits conducted by the CPT during the 2016 to 2018 time period, the authors selected 31 CPT visit reports for analysis. These reports fulfil three selection criteria: (i) each report includes a visit to at least one prison; (ii) each report includes visits to prisons that housed women prisoners in the prison (this included transgender people in men’s prisons when noted by the CPT); and (iii) each report was published up until December 2019. The objective of examining three years of CPT reporting is to explore how the CPT identifies, articulates and responds to the gender-specific needs of women and transgender people in prison during the time in which the body itself developed the women in prison standards.
CPT observations that specifically reference women’s prisons or women’s units, or that mention women and/or transgender people in prison are referred to as ‘gender-sensitive observations’. Once ‘gender-sensitive observations’ were operationalised, thematic areas were defined amongst the authors. In line with previous empirical research on CPT reports [2, 25], the analysis conducted here disaggregates CPT findings based on their thematic content. By way of example, the below recommendation is separated into two thematic areas (conditions of detention and activities, education, and work):
The CPT trusts that the Estonian authorities will take the necessary steps to ensure that the Mother and Child Unit in the new Tallinn Prison will be designed as a separate, closed-off section, which also comprises a suitably-equipped nursery or kindergarten-type facility; this may also facilitate the participation of mothers in work and other activities inside the prison  ¶56).
The second author set up the dataset while the first author acted as the primary coder. To ensure the codes were applied as intended, the second author reviewed the codes following initial coding of five reports (16.1%). Any inconsistencies or unclear instances were discussed and solved by all the authors. In addition, the codes were revised on an ongoing basis to ensure consistency across the reports.
The analysis of CPT reports conducted here explores how the CPT considers the gendered experience of imprisonment in three ways.
It examines CPT observations and the gender composition of CPT visit delegations to determine what impact, if any, the gender composition of delegations has on the CPT’s reporting on issues related to cisgender women and transgender people in prison.
It assesses how the CPT addresses gender-related issues in prisons within its reporting mechanism, with specific reference to CPT recommendations.
It explores how the CPT applied the 2018 Women in Prison Factsheet standards in relevant 2018 visit report recommendations.
By identifying instances where the CPT does not consider, or perhaps insufficiently considers, the gendered experience of imprisonment, it becomes possible to uncover opportunities where the CPT can better institutionalise a gendered understanding of treatment and conditions in prisons.
The question of the impact of gender representation is one that has not yet been addressed in relation to the CPT and its reporting activities. However, this question has permeated the judicial space, offering a foundation on which to raise the question,why gender? Research on gender representation in judiciaries has assessed trends in judicial benches over time, unpacked the grounds on which governments nominate individuals, as well as attempted to determine what difference, if any, greater gender representation and parity makes in terms of expanding gender justice [18, 23, 33, 37]. Greater representation of women has symbolic meaning, as well as practical and substantive impact. For instance, greater representation of women increases the legitimacy of institutions because they become more representative of society and signal an equality of opportunity. Some scholars also argue that women are more empathetic when engaging with other women and that they bring a “gendered sensibility” to the process of decision-making . However, these arguments are countered by scholars who argue that women may not comport with a gender-sensitive approach to decision-making because of factors such as their training, understanding of the law and the need to distance themselves from their difference in order to establish authority and be taken seriously. While studies of the judiciary do not offer a definitive conclusion as to the impact of gender representation, the question of whether the gender composition of the delegations influences CPT reporting can only be answered empirically. In an effort to contribute to examine the influence of gender representation,Footnote 7 this section analyses the impact of gender composition of CPT delegations to determine how, if at all, representation of women in CPT delegations impacts on the amount of gender-sensitive observations.
This analysis considers 31 CPT reports corresponding to CPT visits carried out between January 2016 and December 2018. CPT visits are carried out by Committee and Secretariat members who are often accompanied by independent experts. The composition of CPT delegations is based on several factors, including Committee member expertise (legal, medical, psychiatry, prison service, etc.), nationality, language and specific thematic areas of interest for CPT assessment during a visit . Depending on the size of the country and the type of visit (periodic and ad hoc), the 31 CPT delegations examined here comprised anywhere from three to ten individuals (with an average of eight). That being said, the analysis does not account for additional characteristics within CPT delegations, such as age, race/ethnicity, professional background, expertise and experience. This is because, while variables aside from gender are likely to influence how CPT delegates carry out their work, gender representation within prison monitoring bodies is a primary concern within the legal framework on prisoners’ rights. For example, the UN Bangkok Rules (Rule 25.3) articulate the need to include women in monitoring activities because this ensures “that the provision of services addressing women prisoners’ specific needs are properly inspected by a person of the same gender, as well as encourage(es) the receipt of complaints from women prisoners, who may feel inhibited in coming forward if all members of the monitoring body were to be male”.
The analysis of 31 CPT visit reports revealed that gender-focused observations represented 0% to 38.1% of the total observations made by the CPT in the context of prisons between 2016 and 2018. On average, this amounts to 6.2% of gender-sensitive observations in 2016 reports, 9.3% in 2017 and 7.1% in 2018 (overall 2016—2018 = 7.7%). Potential differences in the proportion of gender-sensitive observations across the years were tested using analyses of variance. The results indicate no significant differences, suggesting that the proportion of gender-sensitive observations were comparable across the years (F (2, 28) = 0.387, p = 0.683). Interestingly, in all three years of reports analysed, the CPT issued reports in which visits were made to prisons accommodating women yet did not include gender sensitive observations (see Fig. 1).
The CPT delegations that carried out the 31 visits were comprised, on average, of 63.5% men and 36.5% women, with the proportion of women in the delegations increasing slightly from over one-third in 2016 and 2017 to 41.5% in 2018 (see Fig. 2). Despite the noted increase in women’s representation within CPT delegations in 2018, the differences across the years did not reach statistical significance (F (2, 28) = 1.134, p = 0.336). It was only in 2016 that a single delegation was composed of more women than men (55.6% of women). In all the remainder visits across the three-year timespan, the proportion of men was higher (77.4%) or equal to that of women (19.4%).
In addition, there is a very weak and non-significant association between the percentage of women on CPT delegations and the percentage of gender observations made in corresponding CPT reports, as indicated by Pearson’s correlation coefficient (r = 0.102, p = 0.585). This finding indicates that the composition of the delegation is unrelated to the weight that gender observations have in CPT reports. Figure 3 displays the relationship between these two variables and shows no clear patterns either over time or between the composition of the delegations and the proportion of gender-sensitive observations.
As mentioned above, greater gender representation within the CPT membership holds value aside from its potential to increase the gender focus within CPT visits and reporting. However, it is notable that in CPT reports in which the proportion of gender-sensitive observations is above average (> 7.7, n = 9 reports), the percentage of women on CPT delegations is also above the average (40.3%, with a minimum of 28.6% and a maximum of 50%). It is also of interest that the composition of the delegations in the three reports with zero gender-sensitive observations had a representation of women above the average (50%, 44.4%, and 44.4%).
How CPT reporting addresses gender in prison
Building on the above analysis of CPT delegation gender composition and its impact on gender observations in CPT reporting, this section delves into the selected 31 CPT reports to analyse how the CPT considers the gendered experience of imprisonment. Of the 45 reports made public over the designated time period, 31 included visits to prisons that, according to the CPT, housed women and/or transgender people (68.9%). Of these 31 reports, 90.3% included gender-sensitive observations (28 of the 31 reports). However, in 50% of the cases gender observations comprised less than 6% of the total observations made (median = 5.3). These numbers indicate that, while the CPT monitors the situation of incarcerated women across Europe in the vast majority of its visits, it does not necessarily do so consistently or to the same extent.
As noted above, not all CPT observations carry the same weight when it comes to state action. Only recommendations require state responses in the form of change to current practice.Footnote 8 While the CPT may issue several comments on a given situation, it does not necessarily always provide an adjoining recommendation or request for information. This is very clear in the context of gender observations, where comments represent 61.8% of all gender observations (n = 201) and recommendations represent nearly half of that at 31.4% (n = 102). The remainder (6.8%, n = 22) are requests for information. To understand how the CPT examines gender in the context of imprisonment, this section explores the thematic areas in which the CPT makes its recommendations, and highlights how the CPT conceptualises the gendered experience of imprisonment.
CPT recommendations on women and gender
Drawing from Lappi-Seppälä and Koskenniemi  and Aizpurua and Rogan’s  work, which develop categories by which to analyse CPT observations, CPT gender-sensitive recommendations are analysed here across seven thematic areas: healthcare,activities and programmes,conditions of detention; staffing; discipline and security; treatment; and contact with the outside world. Content analysis of 31 CPT reports indicates that between 2016 and 2018, CPT recommendations emphasised three focus areas: conditions of detention (29.9% of the total observations and 29.4% of the total recommendations), activities and programmes (21.2% of the observations and 26.5% of the recommendations), and health (18.5% of the overall observations and 22.6% of the overall recommendations) (see Fig. 4). When compared to studies that do not specifically focus on the gendered nature of CPT observations, important differences emerge. For instance, in our analysis of gender-sensitive recommendations, discipline and security receive the lowest proportion of CPT observations, whereas other studies identified this as one of the CPT’s principal focal areas. Conversely, activities and programmes were the second most-referenced thematic area across gender-sensitive recommendations (21.2% of the observations and 26.5% of the recommendations), but comprised less than 6% of CPT observations in more general studies of CPT observations. Whether this difference in how the CPT approaches the gendered experience of imprisonment is the result of expected or actual differences warrants further research.
The CPT has drawn attention to a number of specific issues across the seven themes outlined above. For example, the CPT has called for the ending of vaginal exam practices (CPT Azerbaijan  ¶83), and improvements in the gender balance of prison officer staffing (CPT Azerbaijan  ¶67,CPT Romania  ¶102). The CPT has also raised concerns about de facto isolation/solitary confinement in instances where the numbers of women in prison are so low that there are very few possibilities for women in prison to interact with others  ¶40,  ¶52). Alongside these, the situations of mental health and motherhood and pregnancy in the prison context are seemingly primary concerns for the CPT. On the other hand, CPT observations on the situation of transgender people provide less substantive inquiry.
CPT specific focus areas on women and gender
Motherhood and pregnancy
The analysis of 31 CPT reports reveals an emphasis on the situation of women and their children in prison. The CPT has recommended that new facilities be built for mothers and their children in prison, as well as noted that such facilities should aim to be non-carceral in design. By way of example, the CPT issued the following recommendation to the Italian authorities following its 2016 visit:
The CPT recommends that the Italian authorities allocate the necessary funding for the establishment of protected family houses (“case famiglia protette”) with a view to ensuring that all detained mothers with children are held in a suitable and non-carceral setting, as set out in Law No. 62 of 2011  ¶73).
In relation to mothers with children who live outside the prison, the CPT issued recommendations concerning contact with the outside world. For instance, the CPT recommended, “that steps be taken to ensure women prisoners with children can effectively maintain phone contact with them by adjusting the times at which such calls can take place”  ¶86). The CPT also commented on the need to provide gynaecological healthcare for pregnant women in prison  ¶114), as well as deemed it inappropriate for a mother and baby to live amongst the general prison population  ¶71).
While CPT gender-focused observations place a significant emphasis on the experience of motherhood in prison, the CPT notes in the Factsheet that this heavy emphasis “should not be understood as an endorsement by the CPT of the imprisonment of pregnant women or mothers, with or without their young children. On the contrary, the Committee has […] recommended that alternatives to detention be imposed.” That being said, the CPT’s only reference made concerning alternatives to imprisonment for mothers across the three years of reports analysed, is in the form of a request for information: “The Committee also wishes to receive information on the measures taken by the Belgian authorities to give preference to alternatives to imprisonment for mothers with young children”  ¶74).
Throughout its visit reporting in 2017 and 2018, the CPT consistently noted the situation of psychological healthcare and mental well-being for women in prison. The CPT recommended that efforts be made to provide psychosocial support to women subjected to physical, mental or sexual abuse  ¶100,  ¶72) as well as recommended that women placed in de facto solitary confinement be given regular access to a psychologist  ¶40,  ¶52). Additionally, the CPT issued recommendations in severe mental health situations, such as the situation observed during the 2018 UK-Scotland visit, where the CPT recommended.
the Scottish authorities take the necessary steps towards addressing the specific needs of female prisoners with personality/behavioural disorders through introducing therapeutic tailor-made programmes.
The Scottish authorities, the SPS, the NHS, the judiciary, and social services need to work together to protect these women inmates, suffering from personality and behavioural disorders, and/or having a history of self-harming, abuse and abandonment. Where such prisoners are not eligible for transfer to a psychiatric hospital, a multi-faceted approach should be adopted, involving clinical psychologists in the design of individual programmes, including psycho-social support and treatment. ¶94).
The CPT made 11 references within recommendations that specifically address psychological healthcare for women in prison  ¶40,  ¶100,  ¶52,  ¶72, 73, 79,  ¶90, 94, 95, 96 and 120). However, the CPT reports analysed do not draw out how the experience of imprisonment itself negatively impacts mental health, a finding supported in a number of studies [5, 15, 16]. Such an omission may have significant implications for cisgender women and transgender people in prison in that the CPT itself has determined that prisons are designed for cisgender men. Although the CPT pays particular attention to the situations of cisgender women’s mental health and motherhood in prison, it has not given similar consideration to the specific experience of imprisonment for transgender people.
The CPT examined the situation of transgender people in prison within two of the 31 analysed reports  ¶95,  ¶79). In one instance, the CPT commented on the situation of a transgender woman in Spain who had been accommodated for a year in a male prison wing despite her request to be transferred to a women’s unit. The CPT acknowledged that, “during this period of time, prison officers apparently verbally abused her several times and insisted on her wearing men’s clothes.” In response to this observation, the CPT recommended to the Spanish authorities that “custodial staff should be reminded of their duty to respect the specific gender identity of transgender prisoners, in particular in terms of accommodation, clothing and by addressing them with their chosen name.”
On the other occasion, in the context of the 2016 UK-England visit, the CPT commented on “positive developments” made in relation to transgender prisoners in a men’s prison, but did not specify whether the individuals referred to were transgender women, transgender men or both. This is an issue worth raising because the CPT made no mention of visiting women in its report, but may very well have visited women prisoners who are transgender and living in the men’s prison; which would essentially render women invisible in the demographics of the prisons visited. The CPT noted that transgender people in prison were supported by staff in a variety of ways, including by.
ensuring that make-up and wigs were available if requested, inviting prisoners to increase staff awareness of transgender issues, ensuring different shower times, creating prisoner equality representative roles for transgender prisoners and monthly meetings with custodial managers to check on their well-being.
In the report to the UK government, the CPT did not comment on possible areas of improvement for the treatment of transgender people in prison, nor did it make any related recommendations.
These two reports in which the CPT examines the treatment and conditions of transgender people do not explore other relevant issues, such as healthcare and sanitation needs and the impact of being imprisoned as a transgender woman in a men’s prison . Given that standards on transgender people in prison are not developed in the international legal framework on prisoner rights, the CPT missed an opportunity to provide guidance and best practice to domestic policymakers and national prison oversight bodies in the area of transgender prisoners’ rights.
It seems that from the analysis of 31 CPT reports that there is no standardized approach for how and when the CPT addresses gendered issues in prison. Indeed, this is a criticism applicable to all oversight bodies working in the area of deprivation of liberty generally. Additionally, it is evident that CPT reporting on gender in prison has thus far neglected to identify, assess and account for the experience of imprisonment as it intersects across gender and other identifying characteristics, such as race/ethnicity, age, ability, sexuality and socioeconomic status. This gap in the CPT’s assessment of treatment and conditions in prisons serves to obfuscate the compound discrimination minority groups experience within an already marginalised population within the prison. It would be beneficial for the CPT to adopt a consistent and standardised approach within its reporting in order to describe and analyse issues relevant to prisoners across the spectrum of prison population demographics.
Further, the analysis provided above highlights issues around the CPT’s reporting methodology. For instance, it is unclear at what point the CPT regards a particular situation to be worthy of a recommendation, and it is also not entirely evident in which circumstances the CPT elects to address treatment and conditions of cisgender women and transgender people in prison. The lack of a clear criteria and structure to analyse the gendered experience of imprisonment is indeed a gap in the CPT’s oversight mandate. Perhaps the recent publication of the Women in Prison Factsheet Standards illustrates a turning point in how the CPT intends to assess treatment and conditions of cisgender women and transgender people in prison.
Applying the women in prison factsheet standards
The CPT’s publication of the 2018 Women in Prison Factsheet may be an indication that the CPT intends to make a concerted consistent effort to assess treatment and conditions relevant to women in prison. The Factsheet acknowledges that prison rules and prison facilities are “developed for a prison population in which the male prisoner is considered to be the norm”. While noting that the standards outlined in the Factsheet do not cover the full range of necessary standards applicable to all people in prison, it clearly expresses that “many of the issues addressed may also apply by analogy to other categories of detained prisoners, such as transgender or female juvenile prisoners”. The Factsheet develops seven standards to ensure proper treatment and conditions for adult women in prison: (i) appropriate accommodation; (ii) equal access to activities; (iii) adequate hygiene and health care; (iv) ante-natal, post-natal and child care; (v) gender-sensitive prison management, staffing and training; (vi) gender-sensitive personal searches; and (vii) contact with the outside world. The development of the Factsheet provides an opportunity to see how, and to what extent, the CPT applied its standards within its 2018 visit reports. The following review examines recommendations included in published reports from 2018 visits to Albania, Andorra, the Czech Republic, Georgia, Lithuania, Moldova, Romania, the Slovak Republic and UK-Scotland.Footnote 9 Cumulatively, the prisons visited and reported on by the CPT were populated by a total of 599 women prisoners out of a total population of 23,725 prisoners. None of the 2018 visit reports noted transgender prisoners.
Gender recommendations made in the 2018 reports align in many ways with the Factsheet standards (see Fig. 5). However, the CPT did not consider the gendered implications of personal searches in 2018 reports. Perhaps this oversight is because the issue of personal searches did not arise in any of the 2018 visits, or it is also possible that the CPT did not consider this standard during the visits. In other instances, the Factsheet standards fail to incorporate issues raised on numerous occasions within CPT reporting (referred to as “other” in Fig. 5). This is the case with reference to the CPT’s recommendations to the Czech Republic, Romania and the UK-Scotland on admission screening processes that “include a history of any sexual abuse and other gender-based violence and that (…) should inform any care plan established for the woman to ensure appropriate care and prevent re-traumatisation”  ¶59,  ¶84–86 and 116,  ¶114).Footnote 10 The Factsheet does not address gender-sensitive admission screening processes despite this seemingly being an area of concern for the CPT (8.7% of gender-sensitive recommendations). Amending the Factsheet in this way would bring it in line with the CPT’s own practice in this area.
On some occasions, the Factsheet standards go further than the recommendations made in CPT reports. For instance, the CPT recommended that Romania ensure it meets the special hygiene needs of women prisoners  ¶99). However, the CPT Factsheet standard on adequate hygiene and health care draws a connection between human rights principles and the hygiene needs of women in prison, by asserting that “a failure to provide women in prison with such items can amount, in itself, to degrading treatment”. It appears a missed opportunity to forego mentioning this connection within the visit report as well.
While the CPT explicitly notes within the Women in Prison Factsheet that CPT standards are evolving in the area of women’s imprisonment, the standards adopted within the Factsheet fall short when applied to women whose experience in prison is impacted by characteristics other than the fact that they are women. For example, the Factsheet standards on ante-natal, post-natal and childcare and on equal access to activities do not consider foreign prisoners who are women, and who may need special accommodations to respect cultural and religious diversity. These standards are not entirely innovative, but rather are drawn from Council of Europe Recommendation 2012(12) on Foreign Prisoners and the Bangkok Rules Rule 54. Similarly, the Factsheet does not address the needs of women who have a physical disability (EPRs, Rule 46) or women who do not know the primary language spoken in the prison (SMRs, Rule 41). When characteristics such as these intersect with gender their compound nature impacts women’s experiences in the prison [14, 21] and has significant potential to lead to discrimination and other forms of ill treatment.
Alongside concerns about the CPT’s lack of an intersectional approach to understanding gender discrimination in the context of prisons, the Women in Prison Factsheet standards are structured in such a way that they appear not to apply to transgender women, but are rather relevant “by analogy” to transgender prisoners. By parcelling out transgender prisoners from the Factsheet, the CPT does not fully acknowledge the needs of transgender women as they are women within the prison population. For instance, the Factsheet standards do not make explicit that transgender women may live in men’s prisons and would require specialised healthcare and accommodation needs. In that the legal framework on the rights of transgender people in prison is non-existent, the CPT foregoes a great opportunity to remedy this lacuna.