Updated: Jul 4, 2021
In a devastating blow, The Divisional Court today ruled in FDJ v Secretary Of State For Justice that the Ministry of Justice’s policies in relation to the placement of high risk transgender women prisoners in the women’s prison estate are lawful.
The judge’s ruling will weigh heavily on the claimant, the 3400 women currently incarcerated in UK prisons, and the feminists and prison reformists that have been fighting for the rights of female prisoners.
So what was the Judicial review all about?
The claimant (FDJ), asserts she was sexually assaulted by a trans-identifying male prisoner with convictions for serious sexual offences. This sexual assault was a direct consequence of the MOJ policy to house males in the female estate. The Claimant argued that the policies indirectly discriminate against women prisoners and that the government failed to have due regard to the single-sex exceptions in the Equality Act, which permit separate services for men and women in particular limited circumstances.
The Transgender Policies themselves were written in 2019 following the brutal sexual attack of two female inmates forced to be incarcerated with a trans-identifying male. Although the 2019 policy framework went some way in tightening up the protocol of male inclusion, the claimant argued they did not go far enough to protect the human rights of women prisoners.
Lord Justice Holroyd, delivering the lead judgement, accepted there were real concerns:
“a substantial proportion of women prisoners have been the victims of sexual abuse and/or domestic violence” and accepted the proposition that many would “suffer fear and acute anxiety if required to share prison accommodation and facilities with a transgender women with male genitalia and convictions for sexual and violent offences against women.”
Justice Holroyd also suggests that the government policy should increase the emphasis of Article 3 ECHR mistreatment of prisoners; ('no one shall be subjected to torture or to inhuman or degrading treatment or punishment') when considering the impact on women.
This is positive news. A firm acknowledgement that rights ARE pie. That to include males in the female estate does impact on the rights of women.
Richard Garside, Director for the Centre for Crime & Justice Studies:
The Court ruled on "the lawfulness, not the desirability, of the policies". The current undermining of female prisoners' right in favour of a small sub-section of male prisoners is, currently, 'lawful'. Addressing this mess is a political challenge, as much as it is a legal one.
Although it is good news that a Judge, from his lofty position, confirms that women pay for trans rights, but little comfort to the women living the reality of prison policy. How many are incarcerated with rapists tonight?
So, it would seem that in 2021 we need state why #sexmatters in relation to the criminal justice system. In the now predictable and deafening silence from leading women MP’s, WEP, The Fawcett, Amnesty etc it falls to grass roots women to do the job…… Deep breath and here we go.....
Why does #sexmatter when it comes to crime?
Why, when women make up 52% of the population do they make up less than 5% of the prison population? Is this one big coincidence, or does sex have something to do with it?
Sex is the biggest single indicator linked to offending. Not just the number of offences, but the type of offences. This is reflected in both crime data and prison data.
The difference between the sexes is largest when looking at violent and sexual offences. 98% of sexual offences are committed by males, and the vast majority of victims of sexual offences (in both childhood and adulthood) are women and girls. This is what feminists refer to as male patterned violence.
The term male pattern violence does not mean 'all men' or 'no women', but describes the pattern of perpetrator and victim demographics in the main. This is the basis of 'best odds safeguarding'. Sex segregation is not done on the basis that all men are perpetrators, but that enough men are and for women this risk is a lived reality.
This is why WEP policy, especially our VAWG policy fully advocates for single-sex spaces.
So why are women in prison?
The typical female prisoner is serving a short sentence for non violent crime. In fact 8/10 incarcerated women have in for a non violent crime. Crimes are typically related to conditions of poverty. For example non payment of fines and substance misuse. According to the NGO Women in Prison, 48% are incarcerated for a crime committed to support the drug addiction of someone else.
The profile of the average female prisoner is bleak.
53% have suffered childhood abuse
70% are survivors of domestic abuse
5x more likely to have chronic mental health issues
80% of women in Scottish prisons have experienced a head injury from domestic abuse
(66% of these women experienced repeat head injuries over a period of years)
2 in 5 leave prison with no accommodation to return to
58% women released from prison are likely to be back inside again within a year.
Poverty, street homelessness, alienation from their children, exploitation, financial and psychological dependency on their abusers, and the cycle begins again.
When mothers go to prison 9/10 of the children left behind are rehoused. The futures of these children, denied their right to a family life, informed by trauma is often also bleak. And so the inter-generational cycle continues. Lives lost to poverty and trauma whilst the chattering classes sell out women's rights.
Why does #sexmatter in prison?
Women’s prisons are slowly changing. Drastically different to the male estates. Time spent locked down in cells is much lower and there are more privileges and activities on offer for women.
This is afforded to the women as they do not require a high staff ratio as physical assaults etc are much rarer. Activities that would be dangerous in the male estate are a normal part of life in the women’s.
Women from HMP Downview Surrey reported that when trans-identifying males were included in their estate time spent in lock down was massively increased, and their access to activities and therapies massively reduced. The Prison could not adequately staff mixed areas, so the women lost out.
'They still have there [sic] men parts and walk around with one officer. No one feels safe but everyone is scared to say something as they don’t want to make their sentence worse'.
I't is only a matter of time before someone gets raped'
The impact of male inclusion has a detrimental impact on their welfare. These activities are vital to women. Women prisoners are more likely to self harm than harm others, and more likely to self harm than their male counterparts. Studies also show that when female prisoners self harm they do it more frequently than male prisoners who self harm.
And in the claimants own words:
'I feel that trans women who have a history of violence and sexual offending against women should not be in a situation where they can put our safety at risk. I know that many women in HMP Downview, where they have a unit for high risk trans women, are frightened by the prospect of sharing accommodation and many feel intimidated by those women. They are also scared to report concerns because many prison officers send out the message that any such concerns may be seen as ‘transphobic’.
So what do we know about trans women prisoners?
The Ministry of Justice (MoJ) have confirmed by Freedom of Information requests that 60 of the 125 transgender prisoners known to be in prison in England and Wales are convicted sex offenders.
Data is limited. The MOJ has failed to accurately record the sex and trans status of prisoners especially in shorter sentences. This is concerning are there are many reports of males being treated by the criminal justice system as females. The judge fully acknowledged this in today's ruling and has pressed for more accurate data.
However, the data we do have clearly shows that trans women on long term sentences retain the same pattern of criminal offending as males. Again, sex is the biggest indicator of rates and types of criminal offending.
On what basis are decisions around male inclusion being made?
The Judge accepted that the MOJ could operate a degree of discretion. That this discretion can be lawful on a case by case basis. This is concerning as little regard has been shown for women inmates in the process so far. After all, it shouldn't take a Judge to remind the MOJ that the ECHR Article 3 (Detention conditions and treatment of prisoners) applies to women too.
Case by case is also problematic, as each case will be subject to human error, human bias and Stonewall Training. WE have reason to be skeptical. It was Gordon Pike, a senior official of the Scottish Prison Service,who was responsible for its “gender identity and gender reassignment policy'. Convicted for having over 22,000 child abuse images, his policy allowed males to chose which estate they would be housed in.
The consequences for women are horrific.
The culture around protecting women from sexual assaults and abuse in the MOJ and HMPs is woeful. And it isn't just prisoners committing sexual assaults, the staff are too.
At HMP Downview, Governor Thorne was convicted and jailed for exploiting a female prisoner for three years. She would be bought gifts from the Argos catalogue in exchange for performing sex acts. At one point she feared pregnancy. Other women reported that he would masturbate outside of their cells. It is fair to say that safe guarding women from sexual exploitation really isn't an MOJ priority.
Whilst such a ‘relationship’ between Governor/staff and prisoners is clearly exploitative, if our prisons become unisex (the majority of trans women keep their penis) it is only a matter of time until a woman becomes (consensual or otherwise) pregnant.
Pregnancy should not be an outcome of imprisonment. Women are already forced to give birth in prisons, could they now be getting pregnant in them.?
So why is it considered important to give trans-identifying males access to the female estate?
There are two broad reasons given. The first, to validate their gendered sense of self (trans women are women) and secondly (and more crucially) for their safety.
We know that men, especially gay men and transgender women are vulnerable to sexual assaults and rape in prison. Howard League Report: Sexual Assaults in Prison. This is unacceptable and also strips male prisoners of their human rights.
So why are males vulnerable to sexual assault in prison?
Firstly, and most obviously they are incarcerated with other men (male pattern violence).
Secondly the prison conditions are unacceptable and unsafe. Privatisation, under-funding, staff shortages, overcrowding, over use of custodial sentences, lack of political will, mean that the men in our prison system are suffering.
UK prisons are currently serving justice in the form of cruel and unusual punishment. This has to change.
Placing more vulnerable males in the female population does not solve this problem. At best the structural issues and degrading treatment of males in the male estate continues unchallenged. At worst it imports the culture of lockdown and sexual abuse into women's prisons too.
We need meaningful prison reform, so all prisoners can serve time free of coercive sex and sexual assault.
The women’s estate has long been treated as an afterthought,. WE can not let it be treated as over-spill for broken, overcrowded, understaffed and violent prisons. Women are NOT collateral.
Keep Prisons Single-Sex
@fairplaywomen @RichardJGarside @crimeandjustice @TheHowardLeague @francescrook
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