WIP Statement: Transgender individuals & the prison system

Statement on Transgender Individuals in Prison

17th March 2019

Recently, there has been a public focus on trans women in women’s prisons. We understand that the Ministry of Justice has started to develop specialist accommodation for some trans women in HMP Downview, a women’s prison. This statement responds to this development and the broader issue of transgender women and men in the prison system, particularly women’s prisons, and community-based women’s spaces.

Women in Prison (WIP) is a feminist campaigning charity that provides services supporting women affected by the criminal justice system, many of whom have experienced male violence. It campaigns to expose the injustice and harm caused to women, families and communities by imprisonment and to radically reduce the number of women in prison. Harm exacerbated by, and resulting from imprisonment includes death, self-harm, trauma, mental ill health, homelessness, unemployment and damage to children when their primary carer is in prison. The vast majority of women are imprisoned for non-violent offences that attract short sentences, and because of a lack of appropriate support on release, there is a high rate of re-offending. All of this provides overwhelming proof of a broken system. For thirty five years, one of the main purposes of Women in Prison (WIP) has been to offer support to women, trans women and trans men, in women’s prisons, in the community and, for the past decade, in women’s centres, in order that they be best equipped to rebuild their lives. As far as resources allow, we will continue to do this.

WIP respects the right of any individual to transition. Drawing on our experience in providing support, we recognise the significant difficulties that this often involves. We support the right of women and transgender people to access services that meet their needs.

Our priority is the safety and wellbeing of all those with whom we are working. HM Prison and Probation Service (HMPPS) have a duty to maintain a safe environment for every person in prison. WIP supports the continued scrutiny of requests by transgender individuals to move to a women’s or men’s prison. Recently WIP has shared the concern of others that rigorous and transparent risk assessment that explores the background, motivation and potential risks to the individual and to others, has not been being consistently conducted and monitored. The recent development in HMP Downview indicates that the policy framework for case-by-case decisions is still not clear, and this needs to be addressed as a matter of urgency.

The policy framework for risk assessment must include consideration of factors including the individual’s stage of transition; their particular needs; any history of sexual exploitation, violence or abuse; evidence of motivation to exploit, control and/or manipulate others (including coercive control); and risk to the individual or others of consensual sexual activity, pregnancy or sexual assault. This assessment also needs to include transition plans before prison, future intentions after serving their sentence, and any risk to, or impact on the individual, and to others, of moving prison and of not being moved. This risk assessment needs to be consistent across the prison estate, rather than left to individual governors to interpret and monitored centrally.

Any failure of the risk assessment process can have life threatening consequences and impact on the safety, sense of security, wellbeing, mental health and daily lives of all individuals in prison, including transgender people. We recognise that decisions not to place an individual in the prison of the gender with which they identify can relate to the risk to that person, and/or a risk to others. As this is an area that requires careful balancing of rights, with prioritising safety, a sense of security and the prevention of harm, it may require specialist provision within the prison system. However, whatever provision is made, risk assessment and a balancing of rights remain a high priority.

The Government must now take action to ensure that thorough risk assessments are taking place and to provide alternative facilities if it is decided that the placement of a trans woman or trans man is not appropriate in the prison of their self identified gender. Such alternative facilities need to take account of the particular needs of trans people, including for access to specialist services. Where these facilities are situated in a women’s or men’s prison the broader implications of this need to be addressed. For example, female prisoners’ disproportionate experience of male violence might may mean that sharing living spaces with individuals who committed sexual or domestic violence offences as men may be experienced as triggering of previous trauma. If the placement of specialist accommodation in a women’s prison requires individuals to be escorted at all times, there are complex issues of managing risk and the rights to privacy and dignity of all individuals in that prison.

There also needs to be a transparent approach to the use of facilities to ensure these do not have unintended consequences to either trans individuals or others in the prison. One of these is the danger that such facilities ‘create demand’ from sentencers, or are used as a ‘place of safety’ or a means to access specialist support. The very high numbers of remand and recall prisoners (particularly those with multiple challenges, including mental ill health and substance misuse) shows how widespread this practice is. Data needs to be monitored closely and transparently to guard against this – and the record of the system so far is extremely poor in addressing this issue. As well as these potential unintended consequences, there are a number of questions about the accommodation in HMP Downview that need to be answered by the Ministry of Justice, including who it is intended for, how it will operate, the impact on the wider prison and women there, and what arrangements are in place to monitor its use. There needs to be a clear policy set out on this issue.

Crucially, transgender prisoners and women in prisons need to be consulted and properly involved in developing responses to this issue. We need to know where trans women and trans men are experiencing support in their transition, and where their treatment is not of an acceptable standard. We need to know directly from those living in prisons how this issue is being dealt with, and what needs to happen in the future, rather than a focus on high profile cases that are the current subject of media attention. We know, for example, that there is a serious lack of specialist support for transgender prisoners who are in the process of transitioning or express a wish to transition. This is unacceptable and is a gap that the women’s sector cannot be expected to fill, particularly when all services to women in prison are so desperately underfunded. When individuals are in the care of the state it is the responsibility of state agencies to ensure they can access effective support – not charities.

WIP is pleased that the government has confirmed that there are no plans to amend the Equality Act that allows the provision of single sex women’s services. Justification for these provisions includes a woman’s right to privacy and dignity and the ability of organisations to provide the most effective services (including women only spaces). Provision of women only spaces are necessary for a range of reasons, including the impact of the trauma of male violence and sexual exploitation, and because some services do not meet women’s specific needs. In fact, Women in Prison was established because our founders recognised that a criminal justice system dominated by men’s offending meant that women’s needs and experiences were often invisible.

The exemptions in the Equality Act enable case-by-case decisions to be made in relation to the access of transgender individuals to women specific spaces (as is happening in the prison system currently). The government must ensure that these vital legal protections continue and that guidance is adequate to enable service providers to make decisions that balance the rights of individuals without opening services to risk of legal challenge. It is clear that government departments like the Ministry of Justice and individual specialist providers are not confident in their legal protections when making complex case-by-case decisions. This must change if the rights of women and transgender individuals are to be adequately safeguarded and balanced.

WIP, like other organisations working in the field of penal reform and in the women’s sector, is facing an acute financial crisis, as resources shrink, demand increases and the needs of those we support become more complex. If the government is serious about tackling the crisis in prisons, then appropriate investment is required in the women’s sector and appropriate specialist services so that the prison population is reduced, the cycle of re-offending is broken and all women have a genuine opportunity to rebuild their lives. Only this will ensure the ability to manage the safety and wellbeing, and balance the rights, of all those caught up in the criminal justice system.

Women in Prison does not comment on individual cases.