BLOG: Striking the Balance

Joe Tarbert considers the issues arising in relation to the allocation of transgender female prisoners to the female prison estate.

Criminal justice practitioners will be well versed on the difficulties overcrowding, gang affiliation and substance misuse pose to the safe management of prisons. However, as society gradually opens its eyes to the fluidity and diversity of gender the prison estate has been forced to confront a new challenge. In July 2019 “The Care and Management of Individuals who are Transgender” Policy (“the Care Management Policy”) was published. The policies stated aim (at paragraph 1.1) 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 (GRC) has been obtained.”

The extent to which the Care Management Policy succeeds in that aim was placed under the microscope in the recent judicial review of R (FDJ) v. Secretary of State for Justice [2021] EWHC 1746. This article aims to explain the legal framework for the allocation of transgender prisoners and examines the implications of the judicial review on the future of the Care Management Policy. In line with the facts of the case the focus of this article will be on transgender female prisoners, however the Care Management Policy does apply equally to transgender men and women.

The Legal Framework

Pursuant to the Gender Recognition Act 2004 a transgender person may obtain formal legal recognition of their preferred gender. As Section 9(1) states, “where a full gender recognition certificate (“GRC”) is issued to a person, the person’s gender becomes for all purposes the acquired gender”. [Emphasis added]

The distinction between those transgender persons with and without a GRC has a tangible impact at the point of prisoner allocation. Paragraph 4.64 of the Care Management Policy makes express reference to section 9 of the 2004 Act and states:

“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.” [Emphasis added]

While GRC certified female transgender prisoners are automatically allocated to the female estate, the position is not the same for transgender females without legal recognition. Instead, if they wish to live in their gender, their cases must be considered first by a Local Transgender Case Board (“LCB”) and second by a Transgender Complex Case Board (“CCB”). Paragraph 4.18 of the Care Management Policy identifies several risk factors to be considered, including:

• Potential risks to the individual from others or personal vulnerabilities (g. mental health, risk of suicide, history of being attacked, bullied or victimised);
• Potential risks presented by the individual to others in custody (g. offending history, anatomy, sexual behaviours and relationships, past behaviour in custody); and
• Views and characteristics of the individual (e. strength of confirmation of their presented gender).

Although GRC transgender females bypass the need for mandatory consideration by a LCB and/or CCB, there is still provision for their risks to be considered where necessary. As emphasised above, the mandatory allocation to the female estate is subject to the caveat of “exceptional circumstances”, while paragraph 4.34 allows for a CCB to convened where “a transgender individual with a GRC presents risks which are deemed to be unmanageable within the estate of their legal gender”.

In assessing those risks, paragraph 4.69 explains that “all risks of a transgender woman with a GRC must be taken into account” and specifically refers to the same factors at paragraph 4.18 set out above. For those GRC transgender females deemed to be too high risk for the general female population there is provision for them to be accommodated within a specialist wing at HMP Downview (“the E-wing”) or, exceptionally, the male prison estate.

The Judicial Review

The Claimant was a non-transgender female prisoner at HMP Bronzefield who alleged that she was sexually assaulted by a GRC transgender female prisoner in August 2017. The Claimant challenged the lawfulness of both the Care Management Policy and a related policy governing the specialist E-wing facility at HMP Downview. For the purposes of this article the focus will be on the challenge to the Care Management Policy. The Claimant’s arguments were two-fold:

Ground 1: Indirect Discrimination

The Claimant argued that the Care Management Policy was indirectly discriminatory against female prisoners and therefore unlawful. At the heart of the Claimant’s case was a reliance on statistics, and in particular the following:

• In March/April 2019 there were 163 transgender (non-GRC) prisoners, of whom 81 had been convicted or one or more sexual offences;
• Between 2016 and 2019, a total of 97 sexual assaults were recorded in women’s prisons. Of these, approximately 7 were committed by transgender prisoners without a GRC. It was not known whether any were committed by transgender women with a GRC;
• In 2020, prisoners in the general population who were serving sentences for sexual offences constituted less than 20% of the male prison population and less than 5% of the female population.

Based on those statistics it was argued that the location of transgender women in the female estate exposed non-transgender female prisoners to a greater risk of sexual assault than would exist in a population of solely non-transgender women. By contrast, it was argued that the introduction of transgender men into the male prison estate did not expose the male population to the same risk.

The Claimant argued that the Secretary of State could not justify the disparity between male and female prisoners and that less intrusive measures could have been used to protect the rights of transgender female prisoners. In particular, the Claimant suggested that a risk assessment could be carried out before a GRC transgender female was allocated to the female estate. Alternatively, the Claimant argued that an initial presumption should be adopted that transgender female prisoners with convictions for violent and sexual offences against women should not be accommodated in the female estate.

Ground 2: Mis-stating the Law

The second ground pursued by the Claimant related to paragraphs 2.3 and 4.64 of the Care Management Policy and the assertion therein that transgender female prisoners with GRCs must be placed in the women’s estate unless exceptional circumstances apply. The Claimant argued that the mandatory language failed to account for the exemptions in the provision of single-sex-services contained within schedule 3 of the Equality Act 2010, and that as such the Care Management Policy misstated the law.

Decision

Lord Justice Holyrode dismissed the judicial review on both grounds. Although making clear that there were limits to any conclusions to be drawn from the statistics relied upon by the Claimant, he did accept that the unconditional introduction of a transgender woman into the general population of a women’s prison carried a statistically greater risk of sexual assault upon non-transgender prisoners than would be the case if a non-transgender woman were introduced.

However, he made clear that this limited conclusion took no account of the risk assessment which the Care Management Policy required. He noted that throughout the policy the need to assess and manage all risks was “repeatedly emphasised” and that a high-risk transgender woman with a GRC may be accommodated in the E-wing for the safety or herself or others or, exceptionally, transferred to the male estate.

He also recognised the expertise of both the LCB and CCB in assessing the relevant risks and noted that the Care Management Policy already required them to consider factors such as the offending history of the transgender woman, their anatomy, and sexual behaviours. Lord Justice Holyrode therefore concluded that the Care Management Policy required a “careful, case by case assessment of the risk and of the ways in which the risks should be managed” (at ¶ 86).

Importantly, he agreed with the Secretary of State’s distinction between individual application and overall lawfulness. He noted that when “properly applied” the risk assessment ensures that non-transgender prisoners only have contact with transgender prisoners when it is safe for them to do so. As a result, he disagreed with the proposition that the policies had a disproportionately prejudicial effect on non-transgender female prisoners as compared with non-transgender male prisoners.

He acknowledged that even if his conclusion on the absence of discrimination was incorrect, the policies nevertheless pursued a legitimate aim in ensuring the safety and welfare of all prisoners whilst enabling transgender prisoners to live in their chosen gender. He was not persuaded that there were less intrusive measures that could have been adopted and rejected the Claimant’s presumption against transgender women with convictions for sexual or violent offences against women on the basis that previous offending history was already a factor considered within the existing policy.

As to the second argument regarding mis-stating the law Lord Justice Holyrode agreed with the Secretary of State that the Care Management Policy neither is, “nor purports to be, a statement of the law.” (at ¶ 93) He instead held that the policies could be characterised as guides to the implementation and operation of policies, not statements of law relating to transgender prisoners.

Conclusion

While the judgment of Lord Justice Holyrode upheld the legality of the Care Management Policy, the onus will now be on the LCB and CCB to show that it can apply that policy properly and safely in its management of both GRC and non-GRC transgender female prisoners alike.

This will undoubtedly be a difficult task and, as the Claimant’s own experience highlights, the consequences of getting it wrong can be devastating. Of course, the responsibility does not rest entirely on the shoulders of the LCB and CCB. Ensuring the safety of all prisoners depends heavily on the availability of adequate resources. Prisons have been the subject of significant cuts in funding since 2009/10 and have only recently seen a modest upturn in expenditure. Prisoner violence has also increased, and any incident involving transgender prisoners, whether as victim or assailant, will only heighten scrutiny of the legality and application of the policy.

Only time will tell whether the LCB and CCB are able to overcome these challenges and strike a balance that ensures the safety of all prisoners whilst respecting the rights of transgender prisoners to live in accordance with their gender. As Lord Justice Holyrode recognised, this is a “sensitive area, in which it is unlikely that any policy could be devised which would be to the satisfaction of all persons affected by it” (at ¶ 73). With that in mind it would be surprising if further challenges are not forthcoming, from both transgender and non-transgender prisoners alike.

Joe Tarbert has previously appeared before the Parole Board at HMP Wandsworth and is frequently instructed to represent defendants with acute vulnerabilities and mental health difficulties at all stages of the criminal justice process.