Earlier this week, it was reported that an inmate in HM Prison New Hall, a women’s prison, had been charged with sexually assaulting four female inmates. According to the Sun, the inmate is transgender. Born male and still possessing male anatomy including male genitals, she now identifies as female. Because of that “identification”, the inmate was housed in the female prison estate; in broad terms, the Ministry of Justice says that transgender prisoners should be housed in the part of the prison system that corresponds to their gender identity.
That policy has many implications, one of which is that it is possible for a person with male anatomy, hormones and outlook, to be confined in prison with inmates who are anatomically female. The reasons behind that policy are simple and in some cases noble. Transgender people suffer enormous prejudice and unkindness, from individuals, society and the state; anyone who wants to address those injustices is aiming at the right target. But having the right ends does not justify indifference to the means of obtaining them, nor to the consequences of actions taken in pursuit of those ends. Trying to do better for transgender people in the prison system is a good thing to do, but it is not a simple one.
There is a reason that almost every society in modern human history has drawn lines that differentiate adults with male bodies from adults with female bodies. They are different groups, with different characteristics. Regardless of the words we use to describe them, people with male bodies and attitudes in aggregate behave differently to those with female bodies and attitudes – and male-bodied people in aggregate can pose a potential threat to the dignity and safety of female-bodied people.
That is why we have – among other things – prisons reserved for men and prisons reserved for women. The distinction drawn between male people and female people is not purely about social convention. It is reflective of fundamental physical differences between the two, and of the implications of those differences. We have women’s prisons for the same reason we have women’s toilets, women’s refuges, women’s changing rooms, women’s hostels – to keep women safe from those male-bodied people who might do them harm. To keep women safe from people with penises who might use those penises to do things to women that women do not want to happen,
Those are the principles that are at stake when it comes to the handling of transgender prisoners, and specifically of people who are born male and have male bodies and say they identify as female. As it stands, the prisons system allows at least some people who fit that description to be housed in the female estate, confined with female prisoners. This is something that has troubled some doctors, prison staff, women’s groups and others for some time. They worry that it exposes female prisoners to the risk of abuse and intimidation.
Now, I’m not naive. I know that for some Spectator readers, as for the public as a whole, the things I’m talking about here are not urgent priorities. I know that for a lot of people, the gender issue is an odd and esoteric side issue, while the welfare of female prisoners is far, far down the list of priorities; these are people who have broken society’s rules – why should we shed tears if bad things happen to them?
Perhaps I am a bleeding heart liberal. Perhaps I am too quick to condone and too slow to condemn. But I believe that how we treat the weakest and worst among us is a comment on how we conduct ourselves as a society. I also believe that rules matter. Our rules, our laws passed by the Parliament that expresses our will, demand and dictate that it is not acceptable for women to be put in fear, to be exposed to abuse and violence. Our rules, our laws, demand that each and every single one of us is properly protected – by the coercive power of the state if needs be – from harm. It doesn’t matter if we break those laws ourselves; the whole point of those laws, what gives them meaning and value, is that they apply to everyone, no matter who they are or what they have done. The women who have, allegedly, suffered sexual violence at the hands of another inmate were entitled to the same protection as anyone else. Did they receive that protection?
That is an open question, to be decided in court. To be clear, I am not commenting here on the this specific case. I am commenting on the way the prison system – and the people responsible for it – deal with the issues raised by transgender inmates.
Whatever its outcome, this case is not unique. There are other cases where it has been reported that male-born criminals have been admitted to the women’s prison estate and caused harm and distress to women. In April this year, Andrea Albutt, president of the Prison Governors Association, told a Commons committee about the consequences of allowing male-bodied prisoners into the female prison estate:
“I have seen women very scared in the situation of somebody who has a male body but identifies as a woman coming into a female prison or potentially coming into a female prison.”
Hers is not a lone voice. Not long ago, I spoke to someone in a senior position in the Ministry of Justice who told me that the risks presented by transgender prisoners in the female estate were not being adequately managed; according to this person, there were several cases where male-born inmates had transferred to the female estate on grounds of gender reassignment, and subsequently committed acts of sexual violence against female inmates. Have either the managers of the prisons system or the politicians to whom they answer taken the issues that raise such fears seriously enough? Again, an open question.
As an example, consider the House of Commons Women and Equalities Select Committee inquiry into transgender equality in 2015. This inquiry was Parliament’s best attempt to consider the issues arising from the wish of some people to legally change their gender, and the implications of laws allowing that change. It received evidence from various sources, on several subjects, including the penal system. One submission came from the British Psychological Society, the representative body for psychology and psychologists in the UK. Here is what the BPS said about transgender issues in the prison estate:
Some transgender people in the criminal justice system have been unfairly discriminated against in terms of the provision of access to transgender related healthcare services. This should be addressed as a matter of Department of Justice [sic] policy.
Conversely, psychologists working with forensic patients are aware of a number of cases where men convicted of sex crimes have falsely claimed to be transgender females for a number of reasons:
· As a means of demonstrating reduced risk and so gaining parole;
· As a means of explaining their sex offending aside from sexual gratification (e.g. wanting to ‘examine’ young females);
· Or as a means of separating their sex offending self (male) from their future self (female).
· In rare cases it has been thought that the person is seeking better access to females and young children through presenting in an apparently female way.
Such strategies in no way affect risk and indeed may increase it.
Some people falsely believe that taking oestrogen and blocking androgen in males will reduce risk of offending, however this is not necessarily the case.
Consequently the Society recommends that the Government give appropriate assistance to transgender people within the criminal justice system; while being extremely cautious of setting law and policy such that some of the most dangerous people in society have greater latitude to offend.
The committee also heard from James Barrett. Dr Barrett is the lead clinician at the Gender Identity Clinic at the Tavistock and Portman NHS trust, recognised by many people as the foremost NHS centre for the treatment of medical issues relating to gender variance. He is also the editor and main psychiatric author of the standard United Kingdom textbook in this area, and at the time was president of the British Association of Gender Identity Specialists. It was in the last capacity that he submitted evidence to the select committee, writing on behalf of BAGIS, a group of clinicians and other health professionals committed to “the promotion of excellence in transgender healthcare”. In short, Dr Barrett can reasonably be described as a leading expert in this field, and an expert whose entire professional effort is focussed on the welfare and wellbeing of transgender people. This is what he wrote about transgender people and the prison estate:
The criminal justice system merits quite a bit of thinking about. On the one hand, many of us can remember patients who were charged with crimes, convicted and who ended up on the sex offenders register when we thought that the same thing wouldn’t have happened if they weren’t a trans person.
The converse is the ever-increasing tide of referrals of patients in prison serving long or indeterminate sentences for serious sexual offences. These vastly outnumber the number of prisoners incarcerated for more ordinary, non-sexual, offences.
It has been rather naïvely suggested that nobody would seek to pretend transsexual status in prison if this were not actually the case. There are, to those of us who actually interview the prisoners, in fact very many reasons why people might pretend this.
These vary from the opportunity to have trips out of prison through to a desire for a transfer to the female estate (to the same prison as a co-defendant) through to the idea that a parole board will perceive somebody who is female as being less dangerous through to a [false] belief that hormone treatment will actually render one less dangerous through to wanting a special or protected status within the prison system and even (in one very well evidenced case that a highly concerned Prison Governor brought particularly to my attention) a plethora of prison intelligence information suggesting that the driving force was a desire to make subsequent sexual offending very much easier, females being generally perceived as low risk in this regard.
In summary, a representative body for psychologists and the leading expert in the field, speaking for other experts, submitted clear and quite extensive evidence to Parliament suggesting that some male sex-offending criminals have attempted to exploit existing gender-change rules for harmful and illegitimate purposes and that others are likely to attempt to do so in future.
Let me put that another way. In 2015, the experts we collectively trust and pay to study the issues arising from allowing people to change gender told our elected representatives that there are non-trivial risks that some male criminals exploit gender-change rules to gain access to, and commit acts of sexual violence against, women. Three years later, a person born male, has been charged with four acts of sexual aggression against women in the prison system.
Did the backbench MPs, ministers and officials responsible for law and policy on gender issues consider the evidence of the experts, the evidence that women in prison were being put at risk? Did they recognise and act on dangers that were not just predictable but predicted? When setting policy, did they take full account of the interests and views of women, including those women who find themselves confined by the state in the prison system?
Or did they fail in their duty, fail to consider the implications of their decisions for the weakest and most vulnerable among us? Did they fail women?
By way of answer, I note only that earlier this month, the Government published a consultation proposing to make it easier for male-born people to attain the legal status of women, and thus obtain access to the spaces and entitlements that the law currently reserves for women.