IWD: Transgender women in prison

2 March 2017

Previous blogs on the topic of IWD have focussed on the struggles confronted by women in the past, and the many challenges we still face today.  For one group of women however, the battle is not just over equal opportunities or respect, but over the right to identify and be treated as women. In recent years, the subject of transgender rights has been pushed into the limelight following a spate of reported suicides by transgender women placed in male prisons.

For instance, Jenny Swift was a transgender woman remanded in HMP Doncaster in November 2016 having been charged with attempted murder. She was denied the hormones she required as part of her transition process and was relentlessly teased and taunted by the male inmates with whom she was detained. She took her own life at the end of December.  Jenny’s death followed those of transgender female prisoners Vikki Thompson and Joanne Latham, as well as the publication of a Government Briefing Paper calling for a re-examination of the current policy regulating transgender inmates.

The rapidly increasing number of such tragedies has forced the issue out into the open, but to what extent is the law able to address this complex problem of gender identity and public policy?

Legal overview

The Prison Rules 1999 stipulate that “women prisoners shall normally be kept separate from male prisoners”. But how does this apply to transgender inmates?

  • Under the Equality Act 2010, public authorities are required to have due regard to the need to eliminate unlawful discrimination, advance equality of opportunity and foster good relations between people who share a “protected characteristic” and those who do not. At present, “protected characteristics” include “sex, sexual orientation and gender reassignment” however, the Gender Identity (Protected Characteristic) Bill which is to be debated next month seeks to add “gender identity” to the list so as to encompass those who have not undergone gender reassignment surgery.
  • The Gender Recognition Act 2004 allows people to apply to the Gender Recognition Panel for a Gender Recognition Certificate (‘GRC’), which can be issued on the basis of the applicant experiencing gender dysphoria, regardless of whether they have undergone surgery or hormone therapy.
  • New Prison Service Guidance on the Care and Management of Transsexual Prisoners holds that for the majority of cases, prisoners must be located according to their gender as recognised by UK law. Before being placed in custody, attempts must be made to determine the prisoner’s gender as a legal rather than anatomical matter. This means that transgender inmates who do not hold a GRC, a letter from their GP, or Gender Identity Clinic, will need to apply to a Transgender Case Board if they wish to be placed in a prison of their gender identity. The Board will consider each matter on a case by case basis.

Discussion

The policy of separating men and women in prisons appears to be predicated on the physical threat that men present to women, as well as the possibility of sexual relationships developing. In 2015, public outcry followed the news that transgender woman Paris Green, who had been convicted of murder, had been moved from a female prison to a male prison after having allegedly engaged in sexual intercourse with female inmates.

However, these dangers do not disappear in same-sex institutions. Regardless of gender status, anyone facing a jail sentence could be placed in a prison which turns out to be unsafe or inappropriate in their personal circumstances. However, as Prison and Probation Ombudsman Nigel Newcomen observes, transgender prisoners are “among the most vulnerable, with evident risks of suicide and self-harm, as well as facing bullying and harassment”.

Commentators have advocated the creation of specialist transgender prisons (eg. the Pozzale prison in Italy), while others have supported the establishment of transgender annexes attached to mainstream institutions. However, will creating a third category of prison resolve the problem?

The only sensible solution, argue some academics and policy researchers, is to develop a flexible system whereby the prison destination for transgender women is determined on a case by case basis, supplemented by extensive training for those involved in the decision making process. But what would this mean in practice? How do you respond thoughtfully to the numerous elements at play such as the mental health associations with gender dysphoria, or criminal activity itself? What about the extent of the transition - how far along are they in the process? Even if not fully transitioned, surely those at the earlier stages of transition are more vulnerable?

Such considerations may not have informed the decision to remand Jenny Swift in a male prison, and there appears to be a dichotomy between what the guidance and legislative framework says, and what happens in practice. This is undoubtedly exacerbated by the current crisis in the prison system as a result of cuts, understaffing and prisoner riots. However, in the days preceding IWD, while we reflect upon the extraordinary things that women have achieved and the many challenges which they have overcome, we must #BeBoldForChange and think carefully about what more can be done to create an inclusive society that is sensitive to the many different identities that populate it.

Kingsley Napley are proud to support the #BeBoldForChange campaign and are publishing a series of blogs to promote discussion around gender and the continued relevance of International Women’s Day. 

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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

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