I am coming out of semi-retirement from writing about sex and gender to write this, because it’s about women in prison, a group that desperately need more attention from people interested in politics and policy.
The High Court has been considering the question of transgender women (i.e. people who were born male) in the female prison estate. That’s after a legal action was brought by a woman in a female jail who says she was sexually assaulted by a trans prisoner. The prison service hasn’t denied that this assault took place.
The claimant, was imprisoned between October 2016 and June 2020, argued that prison service policy in England and Wales is unlawful because it exposes women in the female estate to the increased risk of sexual assault by transwomen prisoners, a risk that is not similarly posed to male prisoners in the male estate.
That prison service policy, in essence, says that at least some transwomen offenders should be allowed to serve their sentence in the female estate if they wish. The claim failed and the court ruled that prison policy is lawful. But the ruling remains hugely significant and deserves close reading.
For context, the court heard that a significant number of transwomen in jail are there for sexual offences. In March/April 2019, there were 163 transgender prisoners, of whom 81 had been convicted of one or more sexual offences. 129 of those prisoners were allocated to the male estate, 34 to the female estate.
There remains debate about the statistics here, and the Ministry of Justice is reviewing its data collection methods. But Lord Justice Holroyde reached this conclusion:
I can accept, at any rate for present purposes, that the unconditional introduction of a transgender woman into the general population of a women’s prison carries a statistically greater risk of sexual assault upon non-transgender prisoners than would be the case if a non-transgender woman were introduced.
The judge also found that female prisons, who are disproportionately likely to have been victims of sexual assault, may be frankly terrified of being confined with a male-bodied sex offender:
Many people may think it incongruous and inappropriate that a prisoner of masculine physique and with male genitalia should be accommodated in a female prison in any circumstances. More importantly for the Claimant’s case, I readily accept that a substantial proportion of women prisoners have been the victims of sexual assaults and/or domestic violence.
I also readily accept the proposition … that some, and perhaps many, women prisoners may suffer fear and acute anxiety if required to share prison accommodation and facilities with a transgender women who has male genitalia, and that their fear and anxiety may be increased if that transgender woman has been convicted of sexual or violent offences against women.
However, the court found that prison service policy remains lawful, because that policy must reflect not just the interests of female prisoners but also the interests of transwomen prisoners:
the subjective concerns of women prisoners are not the only concerns which the Defendant [the Justice Secretary] had to consider in developing the policies: he also had to take into account the rights of transgender women in the prison system.
And allowing some transwomen prisoners to serve their time in the female estate alongside women prisoners is necessary under the law (especially the Equality Act 2010), the court found. Because the prison service has checks and safeguards in place to ‘manage’ the risks potentially posed by transwomen prisoners, it is acceptable under the law to expose women prisoners to those risks. The judge concludes:
the policies permit, and indeed require, the necessary balancing of competing rights. The concerns of the Claimant are of course understandable, but are not the only concerns which the Defendant had to consider.
The debate about sex and gender is complicated and often fraught, not least when it reaches the courts. But there are two, fairly simple, points that I think everyone should draw from that court ruling.
The first is that the High Court has confirmed that accommodating the interests of transwomen and women leads, in some circumstances, to ‘competing rights’. Sometimes, giving something to transwomen means taking something away from women. There is nothing transphobic or otherwise hateful about saying so. It is, as the court ruling shows, a simple statement of fact.
That leads to the second point. In this case, the state has given to some transwomen offenders the right to be imprisoned in the female prison estate. That decision, made to accommodate the interests of those transwomen, comes at the expense of women in the female estate. The court found that those women are exposed to an increased risk of sexual assault and to anxiety and fear of such sexual assault.
The court further found that, under the law as it stands, it is legal for ministers to implement a policy that exposes women prisoners to that increased risk and to ‘understandable’ fear, because – assuming proper mitigation is in place – that risk and that fear are an acceptable price to pay to accommodate the interests of transwomen prisoners.
I’m not going to bother saying what I think of this situation, because I suspect I don’t need to. I also note that the Ministry of Justice is already reviewing the policy in question, so I think this won’t be the last word on the matter.
Instead, I will conclude by saying that the High Court ruling has confirmed beyond doubt something that a great many women have been trying to say for several years, often meeting with aggressive rejection and accusations of bigotry. The court confirmed that in some circumstances, accommodating the interests of male-born transwomen means imposing costs and burdens on women.
And that raises a question that society as a whole still needs to answer: why should women pay and suffer to serve the interests of people who were born male?
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