Are males really held in women’s prisons?
Yes. Males are held in women’s prisons throughout the UK.
How can this happen?
The Ministry of Justice and Her Majesty’s Prison & Probation Service Policy Framework setting out when and why a male can be housed in a women’s prison is The Care and Management of Individuals who are Transgender. The current version came into effect in January 2020 and applies to prisons throughout England and Wales.
The purpose of the Policy Framework is to:
Provide staff with clear direction in the support and safe management of transgender individuals in our care, including managing risks both to and from transgender individuals, and enabling risk to be managed when an individual is placed into a prison which is different to that of their legal gender or where a Gender Recognition Certification has been obtained.
As is very common with policy documents, right from the start there is a fundamental misunderstanding of the law. The document states:
Where [transgender] individuals have gained legal recognition, they must be treated in accordance with their legally recognised gender in every respect.
What this means is that where a male has obtained a Gender Recognition Certificate (GRC) which states that he is legally a woman, the MoJ & HMPPS say he must be treated as a woman in every respect.
Consistent with this, the policy framework states:
All individuals who are transgender must be initially allocated to part of the [prison] estate which matches their legally recognised gender.
This means that, according to the MoJ & HMPPS, a male with a GRC which states that he is legally a woman must initially be housed in a women’s prison.
To put it quite simply: they are wrong. The law does not state that males with a GRC must be treated as female in every respect. Nor does the law mean that male offenders with a GRC must be housed in a women’s prison. In fact, the law allows that these males can be excluded from women’s prisons.
The relevant piece of legislation here is the Equality Act (2010). The Equality Act lists a number of ‘protected characteristics’ which include sex and ‘gender reassignment’. Where a characteristic is protected it means that it is illegal to discriminate against someone, or exclude them from services, because of that characteristic. In the case of ‘gender reassignment’ this means that one may not discriminate against a male with a GRC stating that he is legally a woman by for example, refusing him employment or service in a place of business because he is a male with a GRC. This is quite correct and everyone is entitled to necessary protections to enable them to simply live their life.
However, the Equality Act makes special provision in respect of single-sex spaces and services for women. What this means is that all males, including those who have a GRC stating they are legally women, and including those who have the protected characteristic ‘gender reassignment’ may be excluded from single-sex spaces and services for women, where this is a proportionate means to a legitimate end. They may be excluded simply because they are male, there are no other requirements that must be met. To exclude them is not discriminatory. In this very important respect they can be treated differently to women.
However, the MoJ & HMPPS ignore this provision in the Equality Act. The Policy Framework is written as if this provision simply does not exist.
What happens: Males with a GRC
A male who has a GRC stating that he is legally a woman is initially placed in a women’s prison. Ordinarily there is no further discussion and the focus is on how to manage him in the female estate.
If he poses a risk to or is at risk from the female prisoners and the risk is too high to manage in a women’s prison, his case is referred to a Transgender Complex Case Board.
Technically, a decision may be to transfer him to a men’s prison. However, in assessing this risk he is still ‘treated as a woman’. What this means is that he can only be transferred to a men’s prison if that same decision would be made for a female prisoner. The fact that he is male must simply be ignored.
In practice, however, women are not housed in the male estate. We only know of two cases each concerning a woman being held for terrorism offences where in each case there were substantial concerns that there would be an attempt from outside to break the woman out of prison. In both cases, the woman was temporarily held in a male prison because no immediately available female prison had facilities with a high enough level of security.
What this means is that if a male with a GRC can only be housed in a men’s prison if the same decision would also be made for a female prisoner, prison practice indicates that this will never happen. Once a male with a GRC is in a women’s prison, he will remain in the female estate until he has finished serving his sentence.
It is worth repeating: under the Equality Act all males may be excluded from single-sex spaces for women simply because they are male. There are no extra conditions imposed. The MoJ & HMPPS could have chosen to put this into practice. Instead they chose to ignore it.
What happens: Males without a GRC
The Policy Framework states that a male who is ‘transgender’ but who does not have a GRC should initially be placed in a men’s prison. If he wishes to stay there he remains there and decisions will be made about how to manage him in the male estate taking into account in all risks.
If he wants to be transferred to a women’s prison he can make an application. He must provide evidence of ‘living as a woman’. His offending history and past behaviour are also considered. This evidence goes before a Transgender Case Board where a decision will be made. The decision may be to transfer him to a women’s prison.
When considering such cases, the Policy Framework states:
The management of individuals who are transgender… must seek to protect both the welfare and rights of the [transgender] individual and the welfare and rights of others in custody around them. These two risks must be considered fully and balanced against each other (emphasis in original).
This is a very concerning paragraph. All males have the right to be safe in prison. But so do women. There are very good reasons why women in prison require a single-sex environment and why female offenders require single-sex services: excluding all males is a proportionate means to a legitimate end. The Equality Act contains an important provision to protect women in prison. But the MofJ and HMPPS ignore this. Instead they believe that the safety and welfare of female prisoners and their right, as stated in the Equality Act to be in a single-sex space, must be “balanced” against the rights of males who wish to be imprisoned with them. This is not good enough. Women in prison deserve better.
Prisons in Scotland
The MoJ & HMPPS Policy Framework applies to prisons in England & Wales. Scotland is covered by a different framework produced by the Scottish Prison Service: Gender Identity and Gender Reassignment Policy for those in our Custody. This Policy Framework was published in 2014 and is unashamedly emblazoned with the logos of both Stonewall and Scottish Trans Alliance. The document reads as if it has been written by representatives from these organisations.
The Policy Framework has a similar aim and purpose to the Framework produced by the MoJ & HMPPS:
This policy aims to ensure that individuals who identify as transgender people or who intend to undergo, are undergoing or have undergone gender reassignment receive respect and fairness at all times from the Scottish Prison Service.
The purpose of this policy document is to: provide accurate and current information for all SPS employees in relation to gender reassignment and gender identity equality and human rights; outline the SPS procedures to be followed in the event of a transgender person being brought into custody; enable all people in custody within SPS custody to be treated fairly and without discrimination or harassment on grounds of gender identity and gender reassignment.
In common with the MoJ & HMPPS Policy, the Scottish Prison Service demonstrates fundamental misunderstandings of the law. As before, the Policy Framework is written as if the provision in the Equality Act (2010) that permits all males to be excluded from single-sex spaces and services for women does not exist. Secondly, ‘gender identity’ is included as a protected characteristic, along with the actual protected characteristic ‘gender reassignment’. Thirdly, there is an attempt to include ‘gender dysphoria’ under the protected characteristic of disability. The position on housing ‘transgender’ prisoners is clear and needs little commentary. Prisoners are to be housed according to their ‘social gender’:
The accommodation provided must be the one that best suits the person in custody’s needs and should reflect the gender in which the person in custody is currently living.
No distinctions are made between males with a GRC and those without one. Similarly, no distinctions are made between male prisoners who have had ‘reassignment surgery’ and those who have not. Therefore:
A male-to-female person in custody living permanently as a woman without genital surgery should be allocated to a female establishment. She should not be automatically regarded as posing a high sexual offence risk to other people in custody and should not be subject to any automatic restrictions of her association with other people in custody. However, if there is clear evidence that she, as an individual, may pose a sexual offence risk, then this should be dealt with as for any other person in custody posing a risk. Only where a risk assessment determines it is justified, should she be subject to increased staff supervision or restrictions of her association with other people in custody.
If a male prisoner ‘transitions’ during their sentence, he will be moved to a women’s prison, provided he is ‘living as a woman’. The Policy Framework states:
Where the person in custody is permanently living in their new social gender instead of the gender they were assigned at birth, then establishment allocation should usually be the new gender in which they are living.
Accommodation may initially be single-cell. Whether or not a male prisoner who is ‘living as a woman’ shares accommodation with a female prisoner, is decided primarily on the basis of the risk this poses to that male prisoner. The needs of the women prisoners take second place.
Murray Blackburn Mackenzie report that it emerged in 2018 that the SPS policy had been written by James Morton, the Director of Scottish Trans Alliance. Prior to implementation of the policy an Equality Impact Assessment was completed. This was made available after an FOIA request in 2018 (Ref: FOIHQ18106). It reveals the following:
• Women in prison were not consulted, neither was any organisation representing the interests of women in prison
• By contrast, transgender prisoners, transgender people in the community and two organisations representing transgender interests, Scottish Trans Alliance and Stonewall Scotland, were consulted
• Sex was not included in the list of protected characteristics under the Equality Act (2010): sex is in fact a protected characteristic
• Evidence considered in relation to equality groups was only in consideration of transgender people, save for the Equality Act (but see previous point regarding the exclusion of sex from the list of protected characteristics)
• Sex was not included in the equality groups that will be affected by the policy.
We consider that this Equality Impact Assessment is not fit for purpose. Whilst the document refers to risk assessment in respect of allocating transgender prisoners to the prison estate, the omission of the very possibility of women being adversely affected leads us to question the adequacy of such risk assessment. Indeed, policy development was strongly predicated on the assumption that bringing prisoners into the female estate who would previously have been held in the male estate would not have a significant impact on female prisoners. Instead, the policy decision-making process only treats the vulnerability of transgender prisoners as relevant.
These Policy Frameworks and this complete disregard for the law put women in prison at risk on a daily basis. They need to change. We need to Keep Prisons Single Sex.