What happens when males are recorded as women?
The MoJ & HMPPS Policy Framework The Care and Management of Individuals who are Transgender sets out the requirements for record-keeping and the collection of data on transgender prisoners at sections 4.50 and 4.51:
4.50: Arrangements must be in place to determine the legally recognised gender of all individuals at the first point of contact to inform assessments and decisions where binary (male/female) services are provided. Individuals who have gained legal recognition of their gender via a gender recognition certificate (GRC) can be issued with a new birth certificate in their acquired gender if their birth was registered in the UK.
4.51: Where a person’s gender is determined, the legal gender must be recorded on all case administration systems where ‘sex’ (male or female) is required.
What this means is that where a male prisoner has obtained a GRC stating that he is legally a woman, he must be recorded as female/woman in all records. That he was previously legally a man, and remains of the male sex, can only be recorded alongside his current status as female with his permission. If he withholds this, as is his right, at section 4.57 the fact that his sex is male may not be recorded or used in any way:
4.57: It is an offence for a person acting in an official capacity who has gained protected information relating to a person’s application for a GRC or information concerning the gender history of a successful GRC applicant to disclose the information to any other person. Unlawful disclosure is a criminal offence (Gender Recognition Act 2004, s22).
What does this mean for data?
At the most fundamental level this means that it is impossible to ascertain the number of males who are being held in women’s prisons. Only those males who do not have a GRC and are housed in the female estate can be counted: those males in the female estate who have a GRC are recorded as female and thus are ‘hidden’ in the statistics and data. Indeed, the MoJ acknowledges this and is seemingly fully aware that their own guidelines ensure the impossibility of accurate data collection.
The MoJ produces an annual report, HMPPS Offender Equalities Annual Report which reports on key trends for Protected Characteristics. The most recent report is for the years 2018/19 and was published in November 2019.
Section two reports on transgender prisoners (p. 14-15). However these data are acknowledged to be incomplete because the report only includes data on:
those individuals known within prison to be currently living in, or are presenting in, a gender different to their sex assigned at birth and who have had a case conference
Prisoners who have already transitioned and have a full Gender Recognition Certificate are excluded from this dataset.
The Report concludes that:
The figures give an estimate of the number of transgender prisoners and are likely to underestimate the true number.
Various individuals and feminist organisations have submitted Freedom of Information requests in an attempt to ascertain the number of males housed in the female estate. What should now be clear is that such requests cannot be answered, because the available data that would be used to answer them do not permit this.
Further, it is impossible to analyse the full impact of housing males in the female estate. It is only possible to collate data on the impact of housing males without a GRC in the female estate. The impact on women in prison of housing males with a GRC in women’s prisons is in effect ‘hidden’ because these males are recorded as female/women. In the scenario where a male without a GRC assaults a woman he is imprisoned with, the record of that assault will show that this was an instance of a male assaulting a female. The facts of the matter are clear. Where it is a male with a GRC who attacks a woman in prison, the record will show that this assault was committed by a woman. This hides the true nature of what occurred and frustrates the possibility of an appropriate and proportionate response.
What does this mean for crime statistics?
We know that male convictions have been recorded in the female statistics. It is reasonable to assume that, in line with data collection policy, those males who have a GRC are always recorded in the female statistics. It is possible that males without a GRC are similarly recorded. However, it is impossible to ascertain the extent of this. Indeed, unless one knows that a particular ‘woman’ who has been convicted of a crime is male or female, something that it is now impossible to deduce, it is impossible to ascertain for any conviction whether it has actually been committed by a woman or by a male.
We know that male convictions are recorded in the female statistics because two cases were reported in the media. You can read more about them in our Case Studies section. The first is the case of Christopher/ Claire Darbyshire who was convicted of murder in 2016 at the Old Bailey.
The record for this conviction records the name as Claire Ann Lin Darbyshire and gender as female. It is only possible to identify this as a male conviction because the case was widely reported in the press and, obfuscatory language notwithstanding, it was obvious that this individual was male. Darbyshire was held in the male estate at HMP Belmarsh, suggesting that he did not have a GRC, lending support to the argument that even males without a GRC are recorded in the female statistics in some circumstances.
The second example is that of Michael Jameson/Lauren Jeska who was convicted of attempted murder (and other offences) at Birmingham Crown Court in 2017.
Recorded name is Lauren Jeska and gender is female. Again, it is only possible to ascertain that this is a male conviction because the case was reported in the press. It should be noted, however, that the majority of crimes and convictions, even serious ones, do not reach the press.
This means is that it is now impossible to ascertain the true number of convictions for females. Even appeal to the records on a case by case basis will not reveal the actual sex of the individual convicted. The reductio ad absurdum of this is that it is impossible to truthfully state for any individual convicted whether they are a man or a woman. This is particularly pertinent for offence categories which women rarely commit. Here, even the addition of 1 or 2 males can have a significant impact on the numbers. In the case of Darbyshire, recording this conviction as female falsely elevated the number of females convicted of murder by 5% for that year (assuming all other females convicted of murder in that year were actually women). When we look at Jameson/Jeska, the number of females convicted of attempted murder was falsely elevated by around 20% (again, based on previous assumptions as to actual sex of those convicted).
Following on from this, it is clear that including male convictions in the female statistics means that it is impossible to analyse changes to the rate of female convictions. Let us conjecture that there is an apparent significant rise in the number of female convictions for sexual offences against children. This is a crime that women rarely commit, with the overwhelming majority of convictions being male. Unless we are able to correctly identify and exclude those male offenders who have been reported in the female statistics, proper analysis of these data is impossible and the proportionate response in terms of service development and resource allocation remains unachievable. Indeed, the apparent rise may only be due to the inclusion of males in the female statistics: where numbers of female convictions in particular categories are both low and stable, this is a compelling and reasonable explanation. Being able to state this, where it is the case, is important.
What does this means for service development, resource allocation and infrastructure?
Male patterns of offending and behaviour in prison are known to be different to female patterns of offending and behaviour. You can read more about that on Who are the males held in women's prisons? Females have significantly lower rates of serious violent offending, including sexual offences. This results in different risk profiles for male prisoners, as a group, and female prisoners, as a group, with female prisoners presenting a lower degree of risk. This is reflected in the security arrangements in the female estate and the searching protocols for female prisoners. Where these differ from those applicable to the male estate and male prisoners, the requirements are set at a lower level to reflect the lower level of risk that female prisoners, as a group, present.
Where male prisoners, who have male patterns of offending and behaviour, are housed in the female estate, this has the potential to fundamentally change the nature of the female estate. Where a change occurs, recording at least some males as female makes it impossible to accurately assess this change and understand the reasons for it.
We discussed on the Women in Prison page the importance of woman-centred, female-only services for female offenders as an effective and a cost-effective way to reduce offending. This is acknowledged throughout the Criminal Justice System. Based on existing evidence, if males are now included in these services, it is reasonable to assume this will negatively impact on the effectiveness of these services and their acceptability to female prisoners and offenders in the community. Yet, if we are unable to identify which users of these services are male, we are unable to fully analyse these changes, should they take place.
We believe that data must be accurately recorded to enable male prisoners to be identified as male and male crime as male. Neither male prisoners nor male crime should be hidden by recording it as female.