Judicial Review R (FDJ) v Secretary of State for Justice UPDATE
On 2 and 3 March 2021 a judicial review was brought before the High Court by FDJ, a female prisoner who was sexually assaulted in 2017 by J, a male prisoner who identifies as transgender and who has a Gender Recognition Certificate, who was serving a sentence for serious sexual offences against women (including a child) and who was held in the female estate with her. As at the date of the judicial review, prisoner J remained housed in the general population of a women’s prison. Please note that the court has imposed confidentiality concerning the identities of these prisoners and reporting restrictions are in place.
The judicial review challenged the lawfulness of the prison policies concerning the allocation of trans prisoners in the prison estate on the basis that they unlawfully discriminate against women and misstate the law. The two policies are: The Care and Management of Individuals who are Transgender and The E Wing Policy, which provides for the management of male prisoners who identify as transgender and who have a GRC, and who pose a level of risk that is too high to be managed in the general female prison estate. The case was heard before Lord Justice Holroyde and Mr Justice Swift. Karon Monaghan QC acted for the claimant, with Sarah Hannett acting for the Secretary of State for Justice.
You can read more about these two policies HERE and HERE. The reasons why female offenders require single-sex prisons are self-evident and include safety, dignity and privacy. You can read more about this HERE.
The claimant’s claim is that the Policies indirectly discriminate against women in breach of Article 14 of the Human Rights Act (1998) read with Article 3 and/or Article 8 and that they contravene the single-sex exceptions in the Equality Act (2010).
Article 3 states that no one shall be subject to torture or to inhuman or degrading treatment or punishment.
The claimant’s argument here is that the location of male prisoners who identify as transgender (with or without a GRC) in the female estate exposes female prisoners to a risk of sexual assault that would not arise absent that allocation, thus violating their Article 3 rights.
Article 8 concerns the right to respect for private and family life and states that (1) Everyone has the right to respect for his private and family life, his home and his correspondence; (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The claimant’s argument here is that accommodation in a mixed-sex environment violates Article 8 as it is not ordinarily consequent on prison life nor is exposure to an increased risk of sexual assault. Neither of these can be justified as necessary in a democratic society in the interests of any of the aims stated in Article 8.
Article 14 sets forth the prohibition of discrimination, including on the grounds of sex. The argument here is that the two Policies have a disproportionate and therefore unjustified differential impact on women in that they do not create a similarly increased risk for male prisoners. Thus the Policies are unlawfully discriminatory.
The burden of proving that the differential effect on women is justified falls upon the Secretary of State for Justice: it is not the Policies themselves that must be justified. The respectful and lawful care and management of trans prisoners is a legitimate aim and the introduction of the Policies is rationally connected to that aim. However, the means adopted by way of the Policies are not the least intrusive that could have been adopted. Options that do not place women in prison at this increased risk were available to the Secretary of State for Justice, but were rejected.
In rejecting these alternatives, the Secretary of State for Justice did not take account of the single-sex exceptions in the Equality Act (2010) that permit all male transgender prisoners, including those with a GRC, to be lawfully excluded from the female prison estate in its entirety. In fact the Policies misstate the law by stating that male transgender prisoners with a GRC “must be treated in the same way as biological women for all purposes.” This is incorrect. In fact the Policies are written as if the single-sex exceptions in the Equality Act simply do not exist.
Facts that emerged in court
Many of the facts that were presented in court, we already know about. For example, the extreme vulnerability of women in prison, the high rates of previous domestic violence, the traumatising impact that results from simply being imprisoned alongside a male, the high rates of sexual offending amongst male prisoners who identify as transgender. Other facts emerged that are new:
1. The Ministry of Justice collects no data on prisoners who are GRC holders. We knew this already: data on transgender prisoners always exclude those who have obtained a GRC. The defence explained that this is because the MoJ believes that to collect data on GRC holders and to identify them as such could be a criminal act in accordance with Section 22 of the Gender Recognition Act (2004). Section 22 prohibits, in certain specific circumstances, disclosure of information concerning someone’s gender recognition status.
The judges were incredulous that ‘no one knows’ how many GRC holders are in prison, particularly as the Policies contain provisions specifically relating to prisoners with a GRC. The Secretary of State for Justice was instructed to provide full and comprehensive data on trans prisoners, including separate figures for those with a GRC and the estate in which they are held. This will be the first time that data on prisoners with GRCs are collected and the first time that the true number of male prisoners held in the female estate will be calculated. It is not known whether this information will be publicly available.
2. Whist a period of consultation prior to the Policies’ adoption was undertaken, evidence presented clearly indicated that the Policies were already a ‘done deal’ before this consultation took place. The ‘consultation’ was no such thing and the statements in support of women in prison that were presented at that time by Fair Play for Women and the Centre for Crime and Justice Studies were not considered.
3. This judicial review came to the High Court in October 2020. However, it was adjourned soon after proceedings commenced when the defence submitted evidence containing details of the legal advice that had informed the development and adoption of the Policies. This was declared to be subject to legal privilege. The Secretary of State for Justice declined to waive this privilege and the details of that legal advice remain unknown to the court. To circumvent this, the defence submitted evidence dated 5 November 2020 including a ministerial statement dated 3 November 2020 inviting a fresh decision in respect of the Policies.
The defence submitted that Lucy Frazer, the then Secretary of State for Justice, was informed of the relevant sections of the Equality Act and the other options available to her, that included housing all male transgender prisoners, with or without a GRC, in the male estate. Frazer decided to maintain the Policies in their current form: she concluded that housing at least some male prisoners in the female estate represents the fairest and most reasonable course of action.
This seemingly flies in the face of the statement given by Liz Truss, Minister for Women and Equalities, in September 2020 affirming government commitment to single-sex spaces for women. If women’s prisons are not a definitive example of a single-sex space, then what is?
4. The defence claimed that the single-sex exceptions in the Equality Act are merely statement of permission not of obligation. The legal starting point is one of non-discrimination. Thus, in meeting the obligation of non-discrimination, a decision-maker is free to ignore the single-sex exceptions entirely, or to implement a higher threshold for exclusion. The defence argued that this meant that the Policies are fully consistent with the single-sex exceptions.
In conclusion, it was clear that the Ministry of Justice is seemingly determined to house at least some male prisoners in the female estate, including those convicted of rape and other serious violent and sexual offences against women. The decision has been repeatedly made to reject legally permissible options that would have prevented this and would have afforded women in prison the safety, dignity and privacy that they deserve and that under Article 3, they are legally entitled to.
The day after the judicial review a letter we wrote calling upon the Ministry of Justice and the Scottish Prisons Service to keep prisons single sex was published in the Daily Telegraph, which also published an article on the same topic. You can read the text of the letter here as a PDF.
Other media coverage: