28 January 2022

We can resolve the debate on trans prisoners with compassion and common sense

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A few days ago in Parliament, Prisons Minister Victoria Atkins gave a response to a written question on prisoner safety so suffused with doublethink I almost feel proud of my former colleagues in the Ministry of Justice who inevitably crafted it.

Atkins was asked if the standard sexual re-offending risk predictor was being used to assess the risks posed by biologically male sex offenders placed in female prison units by virtue of possessing a Gender Recognition Certificate (GRC). The answer was ‘no’, because possession of a GRC meant that these offenders were no longer legally male, so a risk assessment tool designed for legally male offenders was not valid. Stay with me. Instead, the appropriate tools for risk-assessing biologically female sex offenders would be used.

Bear in mind that anyone can ask for a GRC and the criteria for granting one, presently viewed as too restrictive by the Scottish Government, do not include either surgery or hormone therapy. This means, in theory, that a biologically intact male sex offender can be placed in a female prison unit, locked in alongside women who have been victims of male sexual violence.

So, in the Government’s view, the mere possession of a piece of paper changes everything in relation to risk – you’d have thought Neville Chamberlain put paid to that utopian optimism. By contrast, transgender biologically male sex offender prisoners who do not have a GRC will be assessed using the male-designed risk predictor. Again, the difference between these two cohorts is merely a piece of paper with a subjective judgment.

Defenders of this policy will point out that the number of predatory biologically male sex offenders who have transitioned to female is a tiny subset of a very small and vulnerable cohort. They will also point out that the risk posed to transgender prisoners from other prisoners is far greater than any danger they pose themselves. Moreover, the Prison Service has additional screening in place now which they maintain would reduce the risk of manipulation by biological males who want access to female-only spaces for malign reasons.

All of these facts are true, but there remains a blindingly simple way to eliminate the residual but potentially catastrophic risk altogether and protect the rights of transgender prisoners to serve their sentences in safety.

The Prison Service has run Vulnerable Prisoner Units (VPUs) for years. These units have been designed to protect inmates who, by reason of their offence or other characteristics, cannot be safely managed on normal location. The segregation of these prisoners is an entirely normal, lawful and proportionate way to achieve the legitimate aim of prison safety. Indeed, there is already specific provision for high-risk transgender prisoners with GRCs to be held on a separate wing of HMP Downview, rather than on the general women’s estate.

The recent proliferation of male sex offenders – now 15% of the convicted population – has also meant that whole prisons are now dedicated to holding prisoners who would otherwise be targeted for assault or risked being murdered by their fellow inmates.

Creating a specialised, stand-alone unit for all transgender prisoners is therefore the obvious solution, one which balances the rights of women not to be exposed to predation with the rights of trans prisoners to serve their sentences with dignity and in safety. The arguments – advanced by officials in consultation – that such a move would disadvantage trans prisoners as it would deny them services other prisoners would receive are not remotely credible. In this context, cowed or complicit officials taking the path of least resistance is a more likely explanation.

This is not a challenge that is going to go away. Atkins also disclosed that of the transgender prisoners currently in the male estate but without a GRC, 87 – or around 60% – had a conviction for at least one sexual offence. The introduction of self-ID, with the current regime in place would potentially direct a large number of biologically male transgender prisoners into female units.

While the Government has scrapped plans for this in England, a recent report from Parliament’s Women and Equalities Committee suggests diluting safeguards in the current system to ‘modernise’ the process. In the meantime, those prisoners continue to be exposed to foreseeable and preventable risks while they are in ‘mainstream’ accommodation including Vulnerable Prison Units. 

My guess is that away from the fervid battlefields of social media, most ordinary people would be appalled at the prospect of biologically male prisoners, including sex offenders, even being considered for allocation into a female prison wing. But they would also want to see vulnerable trans prisoners able to live in dignity as who they are, to the extent that their culpability for breaking the law deserves.

The safety of all prisoners is non-negotiable and it defies belief that prison policy should put dogma above this most basic of considerations. It’s worth noting here that the recent judicial review of Prison Service policy, which upheld the rights in principle of transgender sex offenders to be located in female prisons, and which the Prison Service will lean heavily on in all its policy considerations, was heavily qualified. One judge said: ‘I accept the psychological impact on non-transgender women prisoners held in prisons with transgender women is likely, in many instances, to be significant’.

It would be interesting to see, from a litigation perspective if nothing else, the detailed risk assessments and control measures the Prison Service will have completed to demonstrate its legal duty of care to mitigate this ‘significant’ outcome.

As a former prison governor I cannot accept as a matter of principle that female prisoners, often brutally physically and psychologically harmed by men, should be forced to share space and services, locked in with biologically male offenders, including sex offenders. It offends against every basic notion of justice and it is a completely unnecessary response to the equally valid rights of transgender people to serve their sentence safe in who they are.

Yet even to say so risks professional harm and reputational assault from activists who see bad faith in anything less than 100% acquiescence to an orthodoxy that drives a coach and horses through the sex-based rights of a majority – rights they don’t surrender if they have broken the law. Decent and principled colleagues, such as Staffordshire University’s Prof James Treadwell, have been traduced as ‘transphobes’ merely for warning of the sophistication with which sex offenders manipulate themselves into female spaces.

Just this week, the campaigning organisation Liberty called for the Equality and Human Rights Commission (EHRC) to have its status as an ‘A-rated’ national human rights institution reviewed. Why? For having the temerity to challenge the Scottish Government’s haste to push ahead with self-ID for transgender people.

One of the concerns the Commission cited was the negative impact of the current proposals on the criminal justice system. This point won’t be lost on female prison staff in Scotland who have already been instructed, without consultation, to conduct intimate searches on transgender prisoners who still have male genitalia.

Just to be clear, one reason the EHRC is an ‘A’ rated as a human rights institution is because we are a country of rights and laws where LGBT people aren’t routinely tortured and murdered for their sexual orientation or transgender status. Be in no doubt that we can continue to uphold those fundamental values in custody, while also protecting everybody. All it needs is a little less hysteria and a little more compassion and common sense.

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Professor Ian Acheson is Senior Advisor to the Counter Extremism Project.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.