Victoria Hewson is a solicitor and Rebecca Lowe is the former director of FREER, and a former assistant editor of ConservativeHome. Together they founded Radical, a campaign for truth and freedom in the gender recognition debate.
No doubt you sometimes think the things we write about in this column are esoteric — debates about pronoun policies seem far removed from real life. But sadly, quite frequently, there’s a development in the sex/gender debate that brings it to life in an immediate and visceral way. The story of Keira Bell, the young woman whose judicial review centred on the puberty blockers she’d been prescribed, and surgery she’d undergone to try and transition her to the male gender, was one such case.
And now we have the story of “FDJ” — a woman (whose anonymity is protected by the courts) who was held in a women’s prison alongside male prisoners. FDJ sought a judicial review of the Prison Service policy that allows co-habitation to happen. Earlier this month, we learned that she‘d been unsuccessful, and the policy was found to be lawful.
We wrote recently about the Care and Management of Transgender Individuals policy, set by the Prison Service and the Ministry of Justice. This policy provides, broadly, that transwomen prisoners with a gender recognition certificate (GRC) will be housed automatically in the women’s prison estate (irrespective of any physical transition), unless risk assessment shows that the risk to women is “particularly high” (note that this accepts some risk is to be tolerated). Male prisoners who self-identify as women but do not have a GRC may be moved to a women’s prison after assessment by a specialist board.
FDJ’s legal action revealed that:
- There are 34 transwomen prisoners without GRCs in women’s prisons. It’s unknown how many transprisoners with GRCs are in women’s prisons.
- Many of these transwomen prisoners are sex offenders, convicted of assaulting women and children. It seems transwomen prisoners are more likely to be sex offenders than the male prison population as a whole, but again, prison service and MoJ data is incomplete and opaque.
- There’ve been a number of sexual assaults on women prisoners by transwomen prisoners, but, yes, data on this is unclear, too — not least because the Prison Service doesn’t generally appear to record transwomen with a GRC as trans.
- This situation causes many women prisoners (who’ve often had hard lives outside of prison, and been victims of sexual and domestic abuse by men) great anxiety and fear.
The court found, however, that the policy that led to this situation is lawful: the infringement of the rights of women prisoners can be justified by the “balance of rights” that favours respecting the gender identity of the transwomen prisoners. The provision of the Equality Act that allows trans people to be excluded from single sex spaces is permissive, not obligatory, so minsters are not required to apply it. Even if they did, excluding transwomen from women’s prisons might not be proportionate and legitimate: by existing case law, it is “impermissible” to exclude all transgender women prisoners from women’s prisons.
So, what can we draw from this case? First, it is striking that from the opening paragraph of the judgment, the judges use the contested and politicised terminology of gender-identity activists. Lord Justice Holroyde described the case as relating to “persons who identify as the opposite gender from that which was assigned to them at birth”. The outcome of the case will have come as no surprise, therefore, to any reader familiar with the capture of institutions by gender ideology.
Second, the haphazard data collection on transgender prisoners is troubling, and the court considered it “unsatisfactory”. This failing seems to stem in large part from the assumption that transgender prisoners with a GRC must automatically, and in all cases, be treated as biological women, and therefore they do not generally have data recorded about them in their capacity as trans.
Third, the judges considered that risk assessment and management is enough to safeguard women prisoners from the risks presented to them by the presence of males imprisoned alongside them.
In reality, the assumption that a “Complex Case Board” will always be able to weed out individual prisoners who are not sincere in their gender expression seems naïve. Evidence from Scotland shows that transwoman prisoners have reverted to their male identity as soon as they were released from women’s prisons, to the distress of the women prisoners who had been held alongside them. It would be interesting to know how many prisoners who claim to be transgender but do not possess a GRC are found by these boards not to be “sincere”, or to be too dangerous to be moved to the women’s estate.
The judges were satisfied that these processes of risk assessment and management are enough to discharge the duties of the Secretary of State in respect of the human rights of the women prisoners, even if it leaves them feeling distressed and afraid, and places them at increased risk of violence or sexual assault. The judges accepted all of these adverse consequences for women. And under the current legislative framework and case law, this may well be the legally “correct” conclusion. But this does not, of course, make it the right thing morally; the law can, and often has been wrong. And it is hard to think of a better example of UK law being blatantly wrong than this.
Beyond moral outrage over inevitable outcomes, there are concerning inconsistencies in the current policy. If risk assessment and management is thought to be enough to protect women from male violence, surely the same could be applied to the protection of transgender prisoners on the male estate? The sad truth is that the first “headline requirement” of the policy — “All individuals in our care must be supported to express the gender with which they identify” — leads to a burden of risk being placed on some of the most vulnerable women in our society.
This burden is not aimed at protecting transgender prisoners from violence, but at supporting them in expressing their gender identity. The cost to women, whether in physical attacks or simply in fear and distress is, by the formulation accepted by the judges, and by judges in cases before them brought by trans prisoners seeking relocation to the women’s estate, simply part of the “balance of rights” that has been deemed appropriate. Even within the constraints of the law as currently understood, though, it must be possible to frame a policy more respectful of the rights and interests of women prisoners.
Kate Coleman, director of Keep Prisons Single Sex, who supported this judicial review, emphasised to us that:
“This judgement is not the end of the matter. Our group of supportive and active MPs and Peers is growing and this week we have emailed out 30 PQs to be asked across both Houses. Going forward, Parliament will be a focal point for our efforts: if it is lawful to house a male prisoner convicted of rape alongside female prisoners who have been the victims of sexual assault, then the law needs to change.”
You can contribute to the KPSS crowdfunder here.
Caroline Nokes, Chair of the Women and Equalities select committee, once flippantly remarked that concerns about transgender prisoners were an overblown reaction to one high profile case. We hope, in light of the case bravely pursued by FDJ, that Nokes and her committee will take urgent renewed interest in the rights and wellbeing of women prisoners.