The issues facing women in prison in Ireland, including their offending patterns, vulnerabilities and needs mirror those faced by women in prison in the UK. Shockingly, one fifth of women in prison have experienced the death of a child. Women in prison are seven times more likely to be in need of acute psychiatric care than male prisoners.
As of 2019 the number of women in custody in Ireland was 138, which is 3.7% of a total prison population of 3721.
Women from the travelling community are over-represented in prison: 21% of women in prison are from the travelling community despite travellers making up less than 1% of the total population in Ireland.
The law on gender recognition
The piece of legislation that enables a male to ‘become a woman’ is the Gender Recognition Act (2015).
Initially there was a requirement for medical assessment and evidence from a medical practitioner, but under pressure from Professor Michael O’Flaherty (rapporteur of the Yogyakarta principles, Head of EU Agency for Fundamental Rights), this was dropped in favour of a self-declaration approach. The GRC now enables someone to obtain legal recognition of preferred gender on the basis of self-declaration. As should be apparent, there is no requirement for surgery or medical treatment. The only things an applicant has to do to ‘change sex’ (used in the legislation itself, along with gender) is apply, prove identity and be at least 18 years old. Once a male applicant has obtained a GRC, that male is considered to be a woman for all purposes, with no caveats or gatekeeping.
As at 2021, around 400 GRCs have been issued. None have ever been revoked.
The law on single-sex services for women
The Equal Status Act 2000-2018 recognises women’s vulnerability and need for privacy. Private premises can exclude on these bases, for eg, rape shelters.
According to the Act:
• S5(2) Sets out specific exemptions to the obligation not to discriminate, and not to permit discrimination to occur on your premises or in your service.
• S5(2)(g) Expressly permits discrimination between males and females on the ground of the right to privacy:
“differences in the treatment of persons on the gender ground where embarrassment or infringement of privacy can reasonably be expect to result from the presence of a person of another gender.”
• S(2)(g) Allows for single sex spaces: showers, changing rooms, female hospital wards, ladies toilets, women-only accommodation such as shelters, hostels, rape crisis centres.
However, the Act uses ‘gender’ and ‘sex’ interchangeably and the Gender Recognition Act (2015) allows for all intents and purposes, males to obtain legal right to be recognised by a woman in law without exception, for all purposes, and on the basis of self-declaration. Once a GRC has been obtained, a man is a woman and has access to ‘single-sex’ spaces. Males who do not have GRCs can still be lawfully excluded from single-sex spaces for women.
It is also noteworthy that the Act, in referring to ‘a person of another gender’ leaves it open for recognition of a multiplicity of genders.
In 2020 the Programme For Government committed to:
Amend the gender ground in equality legislation to ensure that someone discriminated against on the basis of their gender identity will be able to avail themselves of this legislation (p. 77)
This has the effect of criminalising the defence of female spaces against male incursion.
Prisons policy and practice
There are no specific policies on the care and management of transgender prisoners. However, the Department of Justice has signed up to the National LGBTI+ Inclusion Strategy 2019-2021 which has a section on LGBTI+ Prisoners. It lumps all LGBTI+ prisoners together as a single category with no consideration of different needs.
The Consolidated Committal Order means that a Judge, along with the Prison Governor, has discretionary power over allocation. Minister for Justice and Equality, Charlie Flanagan, said in response to a parliamentary question in 2019: “The Irish Prison Service must accept all prisoners into custody, into whatever prison that a judge orders”.
Current prison practice appears to indicate that where a male prisoner has a GRC, this determines allocation which will be to the female estate. It appears that no consideration is given to conviction, offending history or anatomy.
In respect of male prisoners who identify as transgender, but who do not possess a GRC, it appears that allocation decisions consider anatomy, risk, conviction and offending history.
The lack of a clear prisons policy concerning the care and management of transgender prisoners is concerning. Prison officers have demanded procedural guidelines on how to manage inmates who identify as transgender: male staff cannot search males who identify as women, whilst female staff cannot search prisoners who identify as women, but are physically male.
How many males are held in women’s prisons?
There does not appear to be any data collected by either the Irish Prison Service or the Department of Justice on how many male prisoners are held in the female estate. Going by the Ministry of Justice in England and Wales, it is likely that all male prisoners with a GRC will be recorded as women/female and only women/female.
From media reports we know that in two and a half years, there have been four males identifying as transgender, some of whom have a history of sexual offences and others violent assaults, whose crimes have been recorded as ‘female crimes’. Three of these prisoners are housed in women's prisons. This number should not be seen as definitive.
Alejandro Gentile, AKA Barbie Kardashian is an 18 year old male who was remanded to the female wing of Limerick Prison in 2020 after he was charged with four counts of making threats to kill or cause serious harm. During the court appearance, a GRC was produced as evidence of his legal status as a ‘woman’.
Gentile’s childhood was horrifyingly traumatic and abusive, and from a young age he was coerced by his father into participating in the abuse of his mother. By the age of around 10 he had been placed into care and a series of foster placements broke down due to his escalating violence, which was increasingly being directed towards females and was assuming a sexual nature.
In one particularly disturbing attack in 2018, when he was being driven to another court hearing, he “lunged without warning at the social care worker who was driving the motor vehicle, grabbing her hair and face. G’s nails were long and manicures at the time. [He] dug [his] nails into the social care worker’s eyes, tearing her eyelids. The social care worker required hospitalisation as a result of the injuries sustained. […] G repeated “I am going to kill you”. G tore amounts of hair from the head of the social care worker. G wrapped [his] legs around the victim’s head and chest, refusing to let go and bit the care worker on the hand, continuing to pull out her hair and scrape her face.”
During the same period, from age 15, he began to identify as transgender. He obtained a referral to the GIDS at the Tavistock in London. The female clinician conducting the assessment noted that he was “a young person with a siege mentality, who was on the verge of an offensive attack at all times and who related to me only in terms of how I might impact on [him].”
By the time of his court appearance in 2020, he had changed his name to Barbie Kardashian.
For more details see:
The practice of housing male prisoners in the female estate appears to have started in 2019, when this male prisoner with a GRC obtained on the basis of self-declaration was sent to the female estate after being convicted of 10 counts of sexual assault and one count of cruelty against a child. The assaults were committed between 2011 and 2013 against the then 4-year old son of a woman he was in a relationship with. At the time that the assaults began, the prisoner “started to recognise an issue with gender identity.” He was sentenced to six years and six months imprisonment, with the final 6 months suspended. He was initially remanded to Dochas Centre Women’s Prison but given protective status by the Irish Prison Service and then transferred to Limerick Women’s Prison. Dochas Centre houses women with their infants up to 1 year of age. He has had no medical or surgical treatment.
Such is the risk this prisoner poses to women, he must be accompanied by two officers at all times when in the common areas of the prison. In 2021 he appealed against the severity of the sentence.
How can I help?
Please write to your TD. You can find out who that is at https://www.oireachtas.ie/en/members/.
Please also write to:
The Minister for Justice and Equality, Heather Humphreys (standing in for Helen McEntee who is on maternity leave)
The Minister for Social Protection, Heather Humphreys
Caron McCaffrey, Director General of the Irish Prison Service
IDA Business Park, Ballinalee Road, Longford, Co. Longford
Phone: +353 43 33 35100 Fax: +353 43 33 35371
The Countess Didn’t Fight for This:
Women’s Space Ireland: