Invisible Behind Bars: Why Prison Healthcare Must Become Gender-Responsive

Ms Ine van Zuijlen 

Ine recently completed her Master of Laws at Ghent University (Belgium). Throughout her studies, she developed a particular interest in international human rights law, which led her to participate in the Human Rights Moot Court and to write her master’s thesis on women’s healthcare in detention under the supervision of Prof Yves Haeck and Prof Clara Burbano Herrera. She hopes to further pursue her interest in human rights in her future career, particularly within international organisations.

Introduction

What happens when a pregnant woman enters prison? Or when a woman with a long history of domestic violence, trauma or substance dependence suddenly becomes entirely dependent on the State for her healthcare?

Prison is often perceived primarily as a place of punishment. Yet it is also a setting in which the State assumes a particular responsibility for the health and well-being of those in its care. Once a person enters prison, their ability to access healthcare independently becomes severely restricted: detainees cannot simply choose another doctor, seek treatment elsewhere or decide for themselves when medical assistance is available. Protecting their health therefore depends to a significant extent on the authorities responsible for their detention (OHCHR, 2000).

Prison healthcare is consequently not merely a matter of prison management, but fundamentally a human rights issue. Although people deprived of their liberty lose certain freedoms, they do not lose their fundamental rights, including the right to adequate healthcare (CoE, 2023). The way a prison system responds to the healthcare needs of those in its care ultimately reflects how seriously a society values and protects human dignity.

But healthcare needs are not necessarily the same for everyone. Women represent only a small minority of the prison population, while prison systems have historically developed around male detainees. This raises an important question: does a healthcare system designed around a predominantly male prison population adequately respond to the realities of women in detention?

This post explores how international human rights standards have increasingly answered that question through a gender-responsive and preventive approach to prison healthcare and asks whether the jurisprudence of the European Court of Human Rights has kept pace with that development.

Prisons were never designed for women

Women remain a small minority within prison populations worldwide. According to the World Female Imprisonment List, they account for approximately 6.8% of the global prison population (Fair and Walmsley, 2024). Prison institutions, however, have historically been designed around the experiences, behavior and needs of the much larger male prison population (CPT/Inf(2018)5).

This matters because women often arrive in detention through different social and personal pathways. Research has consistently identified high levels of previous victimization among women in prison, including experiences of domestic and sexual violence, alongside socio-economic disadvantage, mental-health difficulties and substance dependence (Bloom, et.al, 2003). Many women also enter detention with responsibilities as primary caregivers, while some are pregnant when imprisoned (UNODC & WHO Europe, 2009). These circumstances do not disappear at the prison gate. Instead, detention may intensify existing disadvantages by placing women in an environment that was not originally designed around their needs.

The consequences extend directly to healthcare. Previous trauma may affect how a woman experiences medical examinations; substance dependence may require continuity of treatment; pregnancy creates healthcare needs that simply do not arise for male detainees; and reproductive and gynaecological healthcare require appropriate services and expertise. The question is therefore not merely whether healthcare is available in prison, but whether the healthcare that is available can respond to the people who actually need it.

Equal treatment is not always equal care

At first sight, equality may seem to require that every detainee receives the same healthcare. But identical treatment does not necessarily produce equal protection. Where people’s needs differ, providing the same services to everyone may leave some unable to enjoy their rights as effectively as others.  

This distinction reflects the difference between formal and substantive equality (CEDAW/C/GC/28, 2010). Formal equality focuses primarily on treating comparable individuals in the same way. Substantive equality looks beyond identical treatment and asks whether people are able to enjoy their rights equally in practice. In some circumstances, achieving that result requires recognizing relevant differences and responding to them.

Applied to prison healthcare, this is the logic behind a gender-responsive approach (Messina, et. al., 2010). It does not suggest that women have different or greater human rights than men; rather, it asks what may be necessary for the same right to adequate healthcare to be equally effective in practice. Depending on the circumstances, this may require reproductive and gynaecological services, appropriate care during pregnancy, trauma-informed mental healthcare, continuity of treatment or preventive health measures specifically relevant to women.

Importantly, gender-responsive healthcare should not be confused with treating women differently simply because they are women. The objective is not difference for its own sake, nor is it based on assumptions about what all women need. It requires healthcare to respond to actual needs and circumstances, while avoiding precisely the kinds of gender stereotypes that can themselves produce unequal treatment.

The goal, in other words, is not to create different rights, but to make existing rights equally effective in practice. Increasingly, international human rights standards have begun to translate this principle into concrete requirements for the treatment of women in detention.

International law is leading the way

Over the past decades, international and European human rights standards have paid increasing attention to what constitutes adequate healthcare in detention. At the heart of these standards lies the principle of equivalence of care: imprisonment should not result in access to a lower standard of healthcare than that available in the community. The Nelson Mandela Rules (United Nations, 2015), for example, reflect this principle by recognizing prison healthcare as a State responsibility and requiring prisoners to enjoy the same standards of healthcare available outside prison. For women, however, ensuring this equivalence requires particular attention to healthcare needs that may differ from those of the predominantly male prison population. International standards have therefore increasingly complemented these general principles with more specific safeguards addressing the realities of women in detention.

The clearest example is the United Nations Bangkok Rules (United Nations, 2010), the first international instrument specifically dedicated to the treatment of women prisoners. Their significance lies in the fact that they go beyond a general call for equal treatment. They require prison authorities to take women’s particular circumstances into account throughout detention. This begins upon admission: health screening should identify not only physical and reproductive healthcare needs, but also mental health concerns, substance dependence and experiences of sexual abuse or other violence. The Rules further require access to gender-specific healthcare and explicitly address preventive measures, including cervical and breast cancer screening. Pregnant and breastfeeding women are afforded additional safeguards concerning healthcare, nutrition and childbirth.

These requirements illustrate an important feature of gender-responsive healthcare: protection should begin before serious harm occurs. A woman should not first have to suffer a medical crisis before her needs become relevant. Screening on arrival can identify an existing pregnancy, trauma or substance dependence; preventive examinations can detect health problems at an earlier stage; and continuity of treatment can prevent existing conditions from deteriorating. In this sense, the international approach is increasingly concerned not only with responding to inadequate healthcare, but with organizing prison healthcare in a way that reduces the risk of inadequate care in the first place.

This approach is not confined to the Bangkok Rules. The more general Nelson Mandela Rules recognize the need for appropriate prenatal and postnatal care. Similarly, the Convention on the Elimination of All Forms of Discrimination (CEDAW, 1979) requires equal access to healthcare while expressly recognizing women’s particular needs in relation to pregnancy, childbirth and the postnatal period.  The CEDAW Committee has further emphasized the importance of responding to the healthcare needs of women in vulnerable situations (CEDAW Committee, 1999).

At the European level, the European Prison Rules (Council of Europe, 2020) and the standards developed by the CPT (European Committee for the Prevention of Torture, 2000) reinforce this approach. The CPT further translates these broader principles into practical standards for detention (CPT/Inf(2018)5). In the context of pregnancy, for example, its guidance addresses appropriate obstetric care, rejects the use of restraints during labor and emphasizes the importance of considering alternatives to detention for pregnant women. These standards illustrate how a gender-responsive approach can go beyond general principles by identifying concrete safeguards that address women’s specific circumstances.

Taken together, these standards point in the same direction. Gender-responsive healthcare is gradually being translated from an abstract principle of equality into concrete expectations about how prison healthcare should be organized. Screening, prevention, continuity of care, reproductive healthcare and safeguards surrounding pregnancy are not simply responses to harm that has already occurred; they are measures designed to prevent women’s healthcare needs from being overlooked in the first place.

It is precisely this preventive and needs-based dimension that provides an interesting point of comparison with the approach taken in Strasbourg.

Has Strasbourg kept pace with international developments?

The European Court of Human Rights has played an important role in strengthening the protection of healthcare in detention. Although the European Convention on Human Rights does not contain an explicit right to healthcare, the Court has developed important safeguards through several Convention rights, most notably Article 3.

Article 3 prohibits torture and inhuman or degrading treatment or punishment. In the prison context, this means that States must protect detainees from suffering that goes beyond what is inevitably associated with imprisonment itself. In its landmark judgment in Kudla v. Poland, the Court made clear that this obligation includes adequately securing a detainee’s health and well-being, including through the provision of necessary medical assistance.

Over time, the Court has developed a more detailed understanding of what adequate medical care requires (ECHR-KS, 2026). Authorities must ensure that detainees are properly diagnosed, that relevant medical records are maintained, that medical supervision is sufficiently regular where necessary, and that prescribed treatment is actually implemented. At the same time, the Court does not require prison healthcare to match the best medical facilities available outside prison. As explained in Blokhin v. Russia, the essential question is whether the healthcare provided is compatible with human dignity and takes account of the practical demands of imprisonment. This assessment remains highly dependent on the circumstances of the individual case.

This jurisprudence has undoubtedly strengthened the position of detainees. Yet when the focus shifts specifically to women, the picture becomes less developed. Despite the extensive body of Strasbourg case law concerning prisoners’ rights, judgments explicitly addressing women’s particular experiences and healthcare needs remain remarkably limited. The existing cases are also relatively recent and have largely arisen in particular contexts, especially pregnancy and motherhood.

One of the clearest examples is Korneykova and Korneykov v. Ukraine. The applicant was five months pregnant when she was placed in pre-trial detention and later gave birth while still in custody. Among other complaints, she had been shackled to her hospital bed around the time of childbirth and argued that the conditions and healthcare provided to her and her newborn child were inadequate. The Court found several violations of Article 3. Crucially, it did not assess her circumstances as those of just any detainee: it expressly took account of her pregnancy and later her position as a breastfeeding mother.

The judgment is also significant for another reason. In reaching its conclusions, the Court referred to international standards specifically concerning women in detention, including CEDAW, the Bangkok Rules, WHO guidance and CPT Standards. It was the first time the Court referred to the Bangkok Rules in the prison context. The Court therefore demonstrated that international gender-specific standards can inform its interpretation of Article 3.

At the same time, Korneykova also illustrates the limits of the existing approach. The Court’s gender-sensitive reasoning remained closely connected to pregnancy, childbirth and early motherhood, circumstances in which women’s particular healthcare needs are especially visible. The judgment did not develop these considerations into a broader framework for other gendered healthcare needs, such as trauma-related mental healthcare, reproductive healthcare outside pregnancy, or the consequences of previous experiences of violence.

Korneykova is not the only judgment that reveals the Court’s developing, but sometimes inconsistent, engagement with gender in detention.  A different dimension emerged in  Juhnke v. Turkey, concerning a woman who underwent a gynaecological examination while in police custody. She argued that the examination had been carried out without her free and informed consent and complained, among other things, of a violation of Article 3. The Court considered that it had not been sufficiently established that the examination had been imposed by force and therefore did not find a violation on that basis under Article 3. Instead, it examined the lack of free and informed consent under Article 8, which protects private life, and found a violation.  

This distinction is important. A gynaecological examination in detention raises questions not only about privacy, but also about bodily integrity, dignity and the particular vulnerability created by the custodial setting. This concern was raised in the partly dissenting opinion, which criticized the majority for failing to recognize the potentially degrading character of the examination and questioned how freely consent can be given in detention. Juhnke therefore illustrates how a harm that is inherently gender-specific can be legally recognized, while its gendered dimension remains less visible in the Court’s reasoning.

The Court has nevertheless demonstrated in other areas of prison law that it is capable of engaging more directly with the role of gender. In Ēcis v. Latvia, male and female prisoners convicted of comparable offences were subjected to different detention regimes, with women generally benefiting from less restrictive conditions. The Latvian Government sought to justify the difference partly on the assumption that male prisoners generally posed greater security risks. The Court rejected such broad generalizations, holding that differences in treatment could not be based on stereotypes about men and women without an individual assessment. It consequently found discrimination contrary to Article 14, taken together with Article 8.

Ēcis is particularly interesting for the discussion of gender-responsive healthcare. It shows that recognizing gender does not mean accepting every difference in treatment between men and women. A gender-responsive approach must avoid stereotypes while still leaving room to recognize genuine gender-specific needs. This reflects the distinction between treating women differently simply because they are women and adapting healthcare where their actual needs or circumstances require it.

Taken together, these cases reveal a more nuanced picture of Strasbourg’s approach. Korneykova shows that the Court can recognize specific healthcare needs associated with pregnancy and motherhood and draw on international gender-specific standards. Juhnke demonstrates protection of consent and bodily autonomy, but also the difficulty of fully capturing the gender-specific character of certain forms of harm. Ēcis, meanwhile, shows a willingness to scrutinize gender stereotypes and demand individualized assessment. Yet these different strands of case law have not so far developed into a coherent approach to gender-responsive healthcare in detention. The Court has recognized pieces of the picture but has not yet brought them together into a broader framework addressing the range of healthcare realities women may face in prison.

From responding to harm to preventing it

The contrast becomes clearer when the Court’s case law is placed alongside the international standards discussed above. Instruments such as the Bangkok Rules and the standards developed by the CPT are primarily concerned with what prison authorities should have in place: admission screening, preventive healthcare, continuity of treatment and safeguards tailored to women’s particular needs. Their perspective is therefore not limited to situations in which inadequate healthcare has already caused serious harm. Prevention is built into the framework itself.  

Strasbourg litigation necessarily begins from different questions: has the treatment of this applicant reached the level required to engage a Convention right? As a judicial body dealing with individual applications, the Court must determine whether the circumstances of a particular case amount to a violation of the Convention. Under Article 3, this generally requires an assessment of whether the treatment or conditions complained of reached a minimum level of severity (CoE, 2025). This assessment is necessarily context-specific, considering factors such as the treatment’s duration and consequences, as well as the detainee’s individual circumstances.

This difference in starting point has important consequences. International standards may require a prison to systematically screen women for mental health concerns, experiences of violence or reproductive healthcare needs even where no individual detainee has yet suffered serious harm. Strasbourg, by contrast, will generally encounter such shortcomings through the experience of an individual applicant who alleges that her Convention rights have already been affected. Its case law therefore tends to develop in response to concrete harm, rather than by setting out in advance a comprehensive model of how gender-responsive prison healthcare should be organized.

This does not mean that the Court’s protection is exclusively reactive or incapable of addressing broader problems. Its case law has developed important positive obligations concerning detainees’ health, and recurring individual applications may also expose structural deficiencies within prison systems. Nor should the Court simply transform non-binding international standards into new Convention obligations. The distinction is one of orientation: international standards increasingly provide a preventive framework for organising prison healthcare, while Strasbourg’s jurisprudence remains centred on determining whether the Convention rights of an individual applicant have been violated.

For women in detention, however, that distinction matters. Many of the measures associated with gender-responsive healthcare are valuable precisely because they are preventive. Admission screening can identify experiences of violence or substance dependence before that translate into deteriorating health. Regular preventive examinations may detect reproductive or physical health conditions at an earlier stage, and appropriate mental healthcare can respond to trauma before it reaches a crisis point. If legal protection becomes most visible only once suffering has reached the threshold required by Article 3, some of these less visible but nevertheless important healthcare needs may receive comparatively little attention in the Court’s jurisprudence.

The limited number of cases involving women detainees reinforces this problem. Korneykova, Juhnke and Ēcis demonstrate that the Court can recognize gender-sensitive needs and circumstances. Yet these judgments remain relatively isolated and have not developed into a broader account of what gender-responsive healthcare requires across the prison system. The Court’s jurisprudence remains more developed in responding to violations than in defining what gender-responsive healthcare should proactively require.

Precisely because cases concerning women detainees remain so rare, each case also presents an important opportunity. The challenge is not necessarily for Strasbourg to create new rights, but to interpret existing Convention guarantees in light of the increasingly detailed international standards surrounding women in detention. Doing so could allow the Court not only to remedy individual violations, but also to provide clear guidance on how existing rights should operate in the healthcare realities faced by women in prison.

Conclusion

Women do not lose their dignity, autonomy or healthcare needs when they enter prison. Yet ensuring adequate healthcare requires more than responding once those needs have already resulted in serious harm.

International human rights law increasingly reflects this understanding by moving towards a more preventive and gender-responsive approach to prison healthcare. The challenge now is for the European Court of Human Rights to continue developing its jurisprudence in line with this evolution, not by creating new rights, but by interpreting existing Convention guarantees in ways that better reflect the healthcare realities of women in detention.

Ultimately, prison healthcare is about more than medical treatment. It reflects how seriously a society protects the dignity of those who depend on the State for their care. Ensuring that women's specific healthcare needs are not only recognized, but anticipated and adequately addressed, is therefore not a matter of privilege, but of human rights.

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