- We have discussed the issue of ‘Transgender prisoners and women’s prisons’, and consulted our membership. We asked our members which of the following two views aligned most closely with theirs:
View (A): Given the imperative need to protect the rights and security of female prisoners, transgender women should never be accommodated in women's prisons. If they cannot be safely accommodated in men's prisons, they should be accommodated in special units.
View (B): Given the importance of gender identity in a person's life, transgender women have a legitimate claim to be accommodated in women's prisons (and transgender men a legitimate claim to be accommodated in men's prisons). However, this should be subject to a safety assessment in each case, and such accommodations should not be made if they would pose a significant risk to prisoners' safety and security.
- Responses mirrored the divergent views of HLS’s Executive Committee, and reflected wider public discourse. Whilst some respondents were “deeply conflicted”, others expressed very strongly held, completely opposing, views.
- For those people who most closely aligned with View A ….
- …. many of the responses concerned the vulnerability of female prisoners and the need for them to be protected from further harm. The psychological impact and the triggering of trauma responses was highlighted both hypothetically and in first-hand accounts.
- The “case by case basis” on which decisions of where to house someone were being taken was described as ineffective because it could still allow recognisably male people into women’s accommodation; and because it relies on the identification of individual risk, which is often unknown to the authorities, due to the under-reporting of sexual offences.
- It was reported that “trans-identifying male prisoners [had] committed sexual or violent offences at rates much higher than the typical male prison population”; and that it was a known strategy for some men to claim to be transgender to effect a move to the women’s estate in order to target vulnerable females.
- Some respondents were unequivocal in their belief that “people cannot change sex” and thus that what they described as “mixed-sex imprisonment” was “immoral”.
- For those people who most closely aligned with View B ….
- …. many of the responses acknowledged the issue of risks to females in the women’s estate and emphasised the importance of corresponding risk assessment. Some therefore suggested that evidence of a transitioning journey begun prior to sentencing should be required.
- Mention of risk was often associated with a call for decision-making to be made on a case by case basis.
- The complexity of the debate was illustrated by the point that the Equality Act 2010 was used as incontrovertible evidence in support of both View A and View B by some of our members.
- A clear procedure to address the concerns of all those who may consider themselves to be at risk – and for all such risks to be addressed urgently – should be provided. In other words, there must be clear and equivalent procedures to address both the perceived risks to transgender men in the male establishment, and the perceived risks from transgender women to others in the female establishment, in any future policy.
- Any new policy should not prioritise the views or experiences of transgender people over others, and given their potential vulnerabilities, the views of female prisoners should play a much greater part in the production and implementation of the policy than has previously. It is thus important that any involvement in this process by organisations representing transgender people are not ‘foregrounded’ or given greater voice over others, and that appropriate weight is given to all those involved and affected.
- Any generalised assumptions of underlying risk must have a clear and transparent evidential basis to justify any ‘default’ policy position that transgender men may be safely allocated to the male establishment and transgender women may be safely allocated to the female establishment. Safety in this context must include both transgender and non-transgender prisoners who may be accommodated together.
- The role of individualised risk assessment must also be made clear and a great deal more detail is required in terms of the identification, monitoring and management of safety concerns and potential risks to all prisoners.