- Statistics show that transgender persons are marginalised in almost all aspects of their lives.
- When sentencing transgender persons, the courts must be made aware of the significance of their marginalisation and how that should affect the sentencing range available to the court.
- Understanding what the legal obligations are to a transgender person within a custodial environment and how such sentences are served can be used to find ‘special circumstances’ when the magistrate/judge is exercising their discretion and determining the appropriate sentence available.
In the course of representing a client who identifies as transgender in sentencing proceedings, a myriad of submissions can be made.
The submissions made are dependent upon a number of factors including, but not limited to, the seriousness of the offence, the mitigating circumstances of the offence, and the subjective features of the accused. It is prudent, however, to have regard to particularly relevant considerations when making submissions for a client who identifies as transgender.
This article extrapolates some of the main considerations a magistrate or judge should have regard to when sentencing such an offender.