Court Decision Means Males in the UK will Remain Housed in Women's Prisons

In the UK, the decision in the Judicial Review of the Ministry of Justice's transgender prison policies handed down on June 2nd 2021 will keep males who say they are women in women’s prisons.

According to Fair Play For Women, at the end of 2019, a female prisoner (nicknamed FDJ) was granted a Judicial Review (JR) of transgender policies in British prisons on the grounds that they misstate the law and "indirectly discriminate on the grounds of sex.” FDJ is a female prisoner who reported that she was sexually assaulted by a male prisoner who self-identified as a woman, had obtained a Gender Recognition Certificate and was convicted for "serious sexual offences.” This prisoner was held in the general population of the female prison estate.

The case was heard in March 2021. The legal team behind the female prisoner argued that the transgender policies currently in place do not "consider the detrimental impact on female prisoners," and requested that the policies be found to be unlawful.

The two prison policies to be covered by the transgender prisoner judicial review were the "care and management of transgender prisoners" and the creation of a special unit for "high-risk transgender prisoners located at Downview women's prison."

But despite the evidence brought by the female prisoner's legal team that males with a history of violence against women are a danger to female prisoners, especially when considering that most women in prison are not in jail for violent crimes, the High Court "ruled that the MOJ's transgender prison policy to house high-risk male-born transgender prisoners in female prison is “capable of being operated lawfully."

As Fair Play for Women stated, the court was “clear” that the decision to house men who say they are women in the female estate “does undermine the rights of female prisoners.” However, the court also called the concerns of female prisoners “subjective” and claimed they “must be balanced” against the rights of males who self-identify with the opposite sex. “This judgment highlights serious inadequacies in the way the prison service counts transgender prisoners. This is something Fair Play For Women first highlighted back in 2017,” FPFW continued, stating that the ruling “puts to bed” the claims that self-identification policies and female rights are “never in conflict."

According to family lawyer Sarah Philimore, naming women’s concerns as subjective is almost an “improvement.” As she wrote after the ruling,  “there is still much work to be done, but don’t lose sight of the fact that this time last year it wouldn’t have been ‘subjective views’ but ‘transphobic bigotry.’ There IS progress.”

Improvements to transgender policies that should be required to guarantee the safety of female prisoners would be a "case by case" assesment, according to FPFW. The court "recognised the potential for the trans prison policy to result in the mistreatment of female prisoners under Article 3 of the Human Rights Act (Inhuman or degrading treatment). Fair Play for Women added that the impact on women in prison “MUST be considered in decision making.” However, another women's rights group, Keep Prisons Single Sex, told 4W.Pub that the "the lawfulness of the policies was predicated on the assumption that decisions are made with full regard to risk assessment."

Sexual offences should be leveled to decide whether a male prisoner can be in a female prison, but according to Keep Prisons Single Sex, "the judgement is predicated on the assumption that due weight is given to sexual offending - hence the ruling that these policies are CAPABLE of being operated lawfully,”  said lawyer Dr Kate Coleman, who emphasized that "the judges were not required, nor did they comment on, their operation in individual cases.”

It should also be considered that many, if not most, female prisoners are sexual abuse survivors themselves, and therefore housing sexual offenders with them violates article 3 on the mistreatment of women in prison, although the judgment "acknowledges that Article 3 rights MAY be engaged." However, the court ruling said that assuming that a convicted male sexual offender will be a danger to women is "added discrimination" against male sex offenders.

Additionally, the judgment confirmed that 50% of males who claim a trans identity currently in prison were convicted for sexual violence, a number higher than the male population who do not identify with the opposite sex.

Speculations are now being made whether an appeal should take place in the future for discrimination against female prisoners, according to Richard Garside, director of @crimeandjustice. On Twitter, he put together a short review of the ruling: “It has been put on notice that its current approach undermines the rights of female prisoners (while doing so 'lawfully') and that it could be vulnerable to future legal challenge.” But Dr Coleman says that "although the judgment does leave it open for the policies to be challenged in respect of individual decisions concerning the allocation of individual male prisoners,” it also “doesn’t actually tell the MoJ that they need to do anything different, with the exception of improving practices of data collection for transgender prisoners, particularly those who have a GRC.”

Speaking exclusively to 4W.Pub, Dr Coleman said that despite being “disappointed” by the judgment, she believes that there are “important things to come out of this judgement.” She continues:

“This case needs to be seen in the context of previous legal action that has been brought by prisoners of the male sex who have sought transfer to the female estate. This is the first case to be brought by a woman. For the first time the needs of female offenders have been seen as both understandable and legitimate. The judgement makes clear that the court was called upon to make a decision regarding the lawfulness of the policies, not the desirability of the policies. The judgement goes on to say, ‘I fully understand the concerns advanced on behalf of the Claimant. Many people may think it incongruous and inappropriate that a prisoner of masculine physique and with male genitalia should be accommodated in a female prison in any circumstances.’ I agree. This will be our focus going forwards: if it is lawful to house a male prisoner convicted of rape alongside female prisoners who are the victims of rape, the law needs to change.”

Correction, July 7, 2021:
An earlier version of this article incorrectly stated that "about 30% of UK’s female prison’s population was imprisoned for falling short of payment for the TV License."

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