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THIS STORY IS BY

Transgender convicts deserve leniency, Supreme CourtsaysConvict receives reduced sentence because he, like all other transgender prisoners, facessolitary confinement.

By Revital Hovel | Sep. 12, 2013 | 10:12 PM

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Israeli prison. Photo by Itzik Ben Malki

The Supreme Court has reduced the prison sentence of a transgender man

convicted of robbing a gas station near Eilat citing harsher imprisonment

conditions in its decision for leniency. It should be taken into

consideration during sentencing that transgender prisoners face solitary

confinement to protect them from fellow prisoners, the court said.

The defendant, 29, whose name is barred from publication, was born

female, but from a young age identified as male. He is in the process of

undergoing a sex change and has already had breast-removal surgery. The

Be'er Sheva District Court sentenced him and two co-defendants to 15

months in prison and ordered them pay NIS 5,000 as compensation to the

gas station clerk they assaulted during the robbery. The Supreme Court

reduced the transgender man’s sentence to 10 months.

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The three were convicted by a district court of an April 2010 robbery at a

gas station in Kibbutz Eilot, during which they assaulted the clerk, held a

knife to his throat, and stole NIS 1,000. The transgender defendant

appealed to the Supreme Court to contest the jail

sentence. He faces unusually difficult jail conditions,

and his sentence should therefore be reduced, the

transgender man’s attorney, Liora Glaubach-Hacohen

of the Public Defender’s Office, told the Supreme

Court. The separation of transgender prisoners from

the rest of the incarcerated population, per Israel

Prison Service rules, should constitute a mitigating

factor in sentencing, Glaubach-Hacohen said.

The district court had ruled there was no reason to

separate the transgender man from the regular prison

population. "From a physiological standpoint, she is a

woman and it doesn't appear that there is anything

preventing her from being sent to a women's prison,"

the court said. "In any event, it can be assumed that

the prison service will act according to its policy and act in a manner that

will not endanger her."

The Israel Prison Service, however, told the Supreme Court that

transgender inmates are handled differently. When it comes to convicts

whose sexual identities are ambiguous, the service said, they must be

incarcerated separately out of concern they or those around them might

be harmed. The special treatment, Israel Prison Service said, means the

transgender prisoners must be kept in isolation and cannot partake in

activities offered to the regular inmates.

"Over the years, we have done everything we can to make it easier for

these prisoners, demonstrating sensitivity to their special circumstances,”

the prison service said. The transgender man convicted in the gas station

robbery would have to be kept in total isolation, at least for a while,

because he she has not yet undergone sex reassignment surgery, the

prison service added.

Supreme Court Justices Neal Hendel, Noam Solberg and Salim Joubran

ruled that the district court had not accorded sufficient weight to the

defendant's unusual circumstances. "The personal circumstances of [the

defendant] at this stage of her life are not routine or common, but are

unusual," Hendel wrote, adding that the district court appears believed the

defendant's isolation in jail would not be absolutely necessary. Hendel

wrote that, in light of the fact at the Supreme Court received the

information making it clear that he would be separated from the other

prisoners, "I am of the belief that it is appropriate for additional leniency

when it comes to [her] sentence."

Hendel said the sentence should be reduced from 15 to 10 months but

ruled out community service as substitute punishment citing the severity

of the crime.

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