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.