The danger of trans-identified male prisoners being housed in women’s prisons has been highlighted recently in the UK, with the Judicial Review Case brought by a female prisoner who claims she was sexually assaulted in Downview Prison by a trans-identified male prisoner with a Gender Recognition Certificate (GRC). This male prisoner had been convicted of very serious sexual offences against women yet was being held in the general population of the female estate with her, in accordance with prison policy.
We have been watching this case closely because both women’s prisons in Ireland have housed trans-identified male prisoners with a GRC – the women’s wing of Limerick Prison, which currently houses two convicted male sex offenders, and the Dóchas Women’s Centre within Mountjoy Prison, where infants up to the age of one can be held with their incarcerated mothers.
The Judges in the UK Judicial Review, the first of its kind brought by a female prisoner challenging the lawfulness of housing male prisoners in the female prison, ruled against the claimant in favour of the Secretary of State and found the policy to be lawful. The Ministry of Justice claims they carry out adequate risk assessments. However, the data has already been skewed because any incident report that has involved a GRC holder records the GRC holder’s sex as that of a woman, so the sexual assault of the complainant would have been recorded as an assault by a woman. What was telling was the description of seven similar sexual assaults on women by male prisoners with GRCs as ‘statistically insignificant’, while reports of 11 such assaults on trans-identified males in the men’s prison was enough to force the policy.
In addition, the ruling effectively found that the UK Gender Recognition Act of 2004 trumps women’s rights to single sex spaces under the Equality Act, because males with a GRC are recognised as women for the purposes of single sex exemptions.
Interestingly, the Judges also ruled that there is no obligation under UK statutory law to house men and women separately. This raises the question: if there is no legal obligation to separate men and women prisoners, why not house trans-identified males with a GRC in the men’s wing?
In this blistering analysis of the judgement, prison expert and Countess regular Gearoid O’Loinsigh (recent interview) picks apart the flawed use of argument, logic and jurisprudence, and holds up the inherent disregard for women’s safety for all to see. He concludes that the only solution is to repeal the Gender Recognition Act. Those statutory voids in penal policy need to be rectified and women given an explicit right not to share accommodation with men, however they identify.
The recent decision by British courts to reject a case made by a female prisoner who claimed she was sexually assaulted by a sex offender held in the female estate of the prisons disappointed and angered many people. The Judge dismissed the case, concluding that the policy of mixing males (who claim they are women) in prisons with women may be implemented lawfully. There are a number of points to mention in relation to it.
The claim made was limited in scope to males who had committed sexual offences and not all males who claim to be women. There are problematic areas to the case, not least its limited scope or the findings made, but also the arguments put forward by the prison and the reasoning of the Judge. Some of these are almost worse than the actual decision.
The Judge described the matter before him in the following terms:
72. It is necessary to be clear about what the court is, and is not, called upon to decide. Important though it is, the claim has a comparatively narrow focus: it is a challenge to the lawfulness, not the desirability, of the policies. Wider questions as to the imprisonment of women, or as to the amount and allocation of funding in the prison estate, are not relevant to the issues which this court has to decide (and for that reason, much of the evidence of Elizabeth Hogarth, on which the Claimant sought to rely, is simply not relevant and therefore not admissible).https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2021/1746.html&query=(4198/2019
The Judge may well be convinced that, technically, that was the matter at hand and he was only required to look at whether the policies were in contravention of the law or not. The arguments on both sides went beyond that, as did the Judge.
Downview Prison accepted that most women prisoners have suffered sexual abuse before coming into prison and they are a vulnerable group (paragraph 8). Surprisingly the Judge stated that:
9. There is no statutory requirement that male and female prisoners be accommodated in different establishments, but rule 12(1) of the Prison Rules 1999 provides that – “Women prisoners shall normally be kept separate from male prisoners.”
Here the Judge is being clever and washing his hands before he even begins and refers to woman “normally” being kept separate. There may not be a statutory law that says they should be separated, but there is over 200 years of practice and custom going back to reforms in the late 18th century by John Howard; further reforms throughout the 19th century saw women housed in separate wings and even the building of prisons for women. This custom was carried over into the 20th century. We should be clear what a custom means. Customary Law, or Consuetudinary Law, is not written down as such, yet judges frequently refer to what has been done and accepted by the courts over long periods of time. Thus, for example, we find that there is no law that says journalists must protect their sources, but it is a custom, one which the courts have upheld on repeated occasions. It was within the Judge’s power to reaffirm a basic custom which has been implemented over time. He chose not to. The custom of separating prisoners on grounds of age, sex and even offence has such weight that it was included in the Mandela Principles adopted by the United Nations. The rules are quite clear and British penal policy stands in clear violation of them, not just in this particular case or on this issue, but in general.
The different categories of prisoners shall be kept in separate institutions or parts of institutions, taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment; thus:
(a) Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women, the whole of the premises allocated to women shall be entirely separate;
(b) Untried prisoners shall be kept separate from convicted prisoners;
(c) Persons imprisoned for debt and other civil prisoners shall be kept separate from persons imprisoned by reason of a criminal offence;
(d) Young prisoners shall be kept separate from adults.United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) – other languages here
These are such mere customs that they are to be found around the world and even in UN documents on the minimum standards for treating prisoners, not the maximum standards.
Much has been said about the comments made by the Judge and the Defence about statistics on what are termed transgender prisoners and sexual offences. The Judge complained about the lack of clear data, which didn’t prevent him from making very clear statements and a clear judgement, and arguments were made about how statistically significant the figures were. The arguments put forward basically denied the importance of what had happened to women who were assaulted. Downview Prison, through its expert witness, argued that “the statistics relied on by the Claimant involve so few cases of sexual assaults by transgender prisoners on other prisoners that it is impossible to draw any meaningful conclusion” (paragraph 61).
The assaults had a meaning to the women who suffered them; the low number of rapes of women (seven in total for the period under review) may be statistically insignificant to the Judge, but not to the women. However, significance is given to the equally “low” number of assaults on trans-identified inmates in the male estate (11 for the period). Part of the argument for housing these men amongst women is the supposed disproportionate danger they face in the male estate. Statistically, given the size of the male prison population, 11 cases is even less relevant, yet it is accepted as one key part of the policy to hold these men alongside women. Neither the Judge nor the prisons can have it both ways.
But on the point of statistics, the case shows the nightmare that the prison authorities face in trying to manage the issue of men identifying as women and the danger they represent to women in prison. The statistics are not up to scratch.
12. …Moreover, the data provided to the court lacked clarity, and left many questions unanswered: for example, it was unclear whether references to prisoners with convictions for sexual offences related only to prisoners currently serving a sentence for that type of offence, or also included prisoners who had in the past been convicted of such offences. Nor was it clear whether previous sexual offences by a transgender prisoner were committed before or after the person concerned expressed a wish to live in the opposite gender.
13. There were 163 transgender prisoners, of whom 81 had been convicted of one or more sexual offences. ii) 129 of those prisoners were allocated to the male estate, 34 to the female estate. Of the 129 in the male estate, 74 had been convicted of one or more sexual offences.
While the number of trans-identified male prisoners who had been convicted of sexual offences is given for those housed in the male estate as 74, the number convicted of sexual offences among the 34 trans-identified males allocated to the female estate is not given in the judgement. However, if a total of 81 have been convicted of sexual offences and 74 are housed in the male estate, then we can assume that 7 trans-identified male sex offenders are housed in the female estate.
It is not clear how many of the 163 trans-identified male prisoners transitioned before or after conviction, or indeed after being arrested, but going by what we know from other cases, the number would be significant.
The high number of trans-identified prisoners who had been convicted of sexual offences should have the given the Judge cause for concern, but not so; he simply dismissed the figures. The Claimant pointed out that more than 50% of those recorded as transgender had convictions for sexual offences, but the Defence argued that the figures were unreliable.
49. Dr Lamble urged the court to be cautious in assessing claims as to the risk profile of transgender prisoners, because in her view any statistical claim as to the prevalence of sexual offending within the transgender community in prison is tainted by a lack of reliable data. There is uncertainty as to the number of transgender people in the prison estate, compounded by the fact that the unsystematic data collection relies on formal self-declaration by prisoners who may have a number of reasons not to disclose their sexual and gender identities. Claims about the likelihood of transgender prisoners carrying out sexual assaults in women’s prions are based on limited and unreliable evidence: since the total number of transgender prisoners is unknown (but is likely to be greater than the number recorded), then the proportion who have committed sexual offences cannot be known (but is likely to be lower than the proportion put forward by the Claimant). There is not a reliable basis for generalised claims that transgender women have “male patterns of criminality”.
This is mind boggling. It accepts that the men who claim to be women are in fact women and so there is some mystery as to whether they show “male patterns of criminality”. Well, of course they do, that is what the evidence shows and it is also common sense – your pattern of violence doesn’t change just because one day say you are a woman. What the Judge and the Defence are saying is that the data is incomplete, so we will take a shot in the dark on this issue and there is some acceptable number of sex offenders we are willing to let into the female estate. We don’t know what that number is, but if the males who claim to be women turn out to be three times the recorded number, then that might reduce the percentage figure of sex offenders within that cohort to an acceptable level. Women are being told there is an acceptable level of danger that the state is willing to place women in.
Prisons are supposed to be safe places. We know they are not and that there are very high levels of violence, particularly in the male estate, but the aim of the prison authorities is supposed to be to make them as safe as possible. Here the Judge is saying, no, we accept as a matter of policy a level of violence and risk, and we will only try to ensure that it is not disproportionate. Though what they consider to be a proportionate and acceptable level of violence is never stated.
A lack of data, however, is no excuse. Policy can only be made on the basis of the available data, not on speculations, which is what the Judge is doing. The facts are clear – more than 50% of those males claiming to be women are sex offenders. These are the facts as they currently stand. Even so, you wouldn’t get away with this type of talk in relation to other crimes. For example, sexual offenders have a relatively low rate of recidivism. This figure on the low rate of recidivism has a few caveats: sexual crimes have a low rate of reporting, investigation and conviction in general, which may skew to some degree the recidivism rate. Various prisoners go through therapy programmes in prison as well, which also helps. Finding stable employment can have a positive effect on the recidivism rate for a whole host of crimes, including sexual offences. And yet no one questions why we don’t let sex offenders work with children on this basis – the statistical nightmare is not relevant in this case. We don’t think, well the 10-15% rate might be higher, but if we had better figures it might be even lower. We work on the basis that any percentage is significant and debates on the figures for offenders are not relevant: we know some will reoffend, therefore we do our best not to place children at risk. The Judge in this case turned that logic on its head and said we don’t really have the full statistical picture and we are willing to place women at risk, we are just not sure how much of a risk, but meanwhile we will go full steam ahead. As the Defence claimed:
65 …There is no reliable statistical case that transgender women prisoners pose a disproportionate risk of harm to non-transgender women prisoners: and even if there were, it could not impact on the lawfulness of the policies because they provide for risk assessment on a case by case basis. The policies provide for account to be taken, in decisions as to allocation, of all the risks posed by and to the transgender prisoner concerned. (Bold added).
It is for the Judge and the prison all a question of proportions and degrees – women are expected to run some risk of harm, just not too much or too little either.
There is also some discussion of what are termed “competing rights”, i.e. the rights of sex offenders vs the rights of their potential victims. This was actually raised as an argument by the Defence:
58… The single-sex exemptions should so far as possible be given effect in a way which is compatible with the art.8 rights of the transgender prisoner against whom the exemption may be applied. Ms Hannett refers in this regard to R (B) v Secretary of State for Justice  2 All ER 151, in which a transgender woman prisoner, whose previous convictions (when legally a man) included manslaughter and the attempted rape of a woman, successfully challenged a decision refusing to move her from a male prison to the women’s estate, where that move was said to be necessary as a step towards transition surgery.
In other words, the rights of the rapist trump the rights of potential victims, many of whom, as was accepted by all in the case, have already suffered sexual violence prior to entering prison.
In this particular prison, Downview, the transgender male prisoners are now currently held on a separate wing to the women. This was not always the case, but it is now seen as reassuring and a measure that will reduce the risk to women. While housing them in a completely separate prison or in the male estate would reduce the risk entirely, this is not countenanced by the Judge. The Judge, in paragraph 31, approvingly cites the Care and Management Policy, which states:
4.64 The Gender Recognition Act 2004 section 9 says that when a full GRC is issued to a person, the person’s gender becomes, for all purposes, their acquired gender. This means that transgender women prisoners with GRCs must be treated in the same way as biological women for all purposes. Transgender women with GRCs must be placed in the women’s estate … unless there are exceptional circumstances, as would be the case for biological women. (Bold added)
This of course not only accepts that the men are women but also contradicts his earlier statement that there is no statutory law that obliges the prisons to house men and women in separate units. Once again, he can’t have it both ways, but he does. He goes on to refer to E Wing, which “caters for those who are legally female but who pose too high a risk to other women to be located in the general population of the women’s estate” (paragraph 32). One would have thought that all male sex offenders posed such a risk to women and all males potentially pose such a risk to women, particularly in confined settings.
At the time of the assault on the Claimant, the particular male prisoner was not housed in a separate unit.
38. The Governor of HMP Downview says in her witness statement that a transgender prisoner who is accommodated in the general population on B Wing, as J has been, would not be allowed to shower at a time when women prisoners have access to the shower area.
I am sure the Governor thinks this was a nice concession, but that this even arises is problematic. As the Judge states, many of these male prisoners are legally women and it is only a matter of time before they demand unfettered access to all areas of the female estate and at all times. In fact, part of the prison’s arguments was that they have to balance rights and that “As an indication of the difficulty of striking a correct balance, Ms Hannett points out that the Defendant faces both this claim and a claim by transgender prisoners allocated to E Wing who seek transfer to the general women’s population” (paragraph 54). And the Judge echoed this, stating that the prison has to balance the rights of women and men. The Judge accepted that the placing of men in the women’s estate did give rise to anxiety amongst the prisoners and there was some danger, but it could be managed.
78. However, the subjective concerns of women prisoners are not the only concerns which the Defendant had to consider in developing the policies: he also had to take into account the rights of transgender women in the prison system.
79. Throughout the policies, the need to assess and manage all risks is repeatedly emphasised. A transgender woman, with or without a GRC, who is assessed as suitable to be accommodated in the general population may be subject to restrictions if necessary. A transgender woman with a GRC will, if necessary for the safety of herself and/or others, be accommodated on E Wing and have no unsupervised contact with women prisoners elsewhere in the prison. In an exceptional case, a high risk transgender woman, even with a GRC, can be transferred to the male estate because of the higher level of security which is there available. (Bold added)
Once again, the dangers are acknowledged but it is left to the implementation of safety protocols by the prison itself. While not even the Judge denies the problems, he just minimises them and assumes women’s concerns are not based on a personal knowledge or analysis of “male patterns of violence” but are rather subjective – the modern version of hysterical women who should get a grip of themselves. It is clear from this Judgement where we are headed.
The problems raised cannot be resolved in the context of current legislation, as the judges are willing to overlook the safety of women in pursuit of a balance between their rights and those who would potentially sexually assault them. The Gender Recognition Act needs to be abolished, no ifs or buts. Those statutory voids that exist in penal policy need to be rectified and women given an explicit right not to share accommodation with men. Men claiming to be women should be housed in the male estate or in a specialised stand alone unit not connected in any shape or form to the female estate.
Much was made by the Judge of the protocols and evaluations that are made when placing men in the female estate. However, it is never explained why this cannot be done within the male estate, where they should be held. No evaluations are made as to how to keep them safely within the male estate, only as to how to “safely” place them in the female estate, which we know does not work. The seven “statistically insignificant” rapes are testimony to that fact. This is an appalling Judgement on so many levels, and many sex offenders will now take advantage of it. Soon we will have men parading around the same areas as women, including the showers. If, as the Judge does, it is accepted that these men are women, then there is no reason to exclude them from all areas of the female estate: a dangerous precedent has been set.
Gearóid Ó Loingsigh
About the author: Gearóid Ó Loingsigh is a political and human rights activist in Latin America and has published a number of reports on prisons in Colombia. Prior to the Covid-19 pandemic he regularly visited prisons in Bogotá, Medellín, Cúcuta, Bucaramanga and Valledupar to carry out workshops with prisoners. Gearóid has given talks to and workshops with grassroots rural and student based organisations on prison issues and also conflict and development.