In recent weeks there have been a series of ongoing toxic debates surrounding the issue of transgender people and access to single sex spaces, with one of the most common examples being that of transgender women in female prisons. In particular, large numbers of gender critical campaigners have claimed that the housing of transgender women in female prisons poses a risk to the cis-women inmates. In this article, I seek to break down the facts behind this claim and what we actually know about the issue.
What is the argument?
The gender critical position on this issue is neatly summarised in the ‘Prisons’ section of the website of Fair Play for Women. The organisation claim that in order for transgender women to be housed in a prison corresponding with their gender identity, “all they need to do is self-identify as a woman. Legal or medical transition is not required for permission to transfer.” Indeed this is certainly true in some senses, transgender women who have not undergone legal or medical transition can request a transfer to a prison corresponding to their gender identity, however the statistics show that this is very rarely approved and not as simple as this phrasing would suggest (see below).
Perhaps more importantly, this argument conflates the right of self-ID (which is allowed (to an extent) within British law already, based on the ability of a transgender person to live in their acquired gender without a Gender Recognition Certificate (GRC)) with the right of prisoners to be housed according to gender identity, a right which is far more constrained.
Where are transgender people imprisoned?
When a transgender person has a GRC, they will be housed in a prison corresponding to their new legally recognised gender, however there are very few of these cases, with most estimating the numbers being in single figures. In order to get a GRC, an individual must be over 18, have two separate medical reports from accredited practitioners, be able to prove that they have lived in their acquired gender for at least two years, and must intend to live in this gender for the rest of their life.
In most cases where a transgender person does not have a GRC, then decisions about their accommodation are made by the Local Transgender Case Board (LTCB) and Transgender Complex Case Board (TCCB). As governed by the care and management of transgender offenders policy by the national offenders management service, the decisions of the LTCB and TCCB are made on a case by case basis, according to the specific circumstances of the inmate and those they will be housed with. These include the vulnerabilities of the women held on the prison estate, whether the individual concerned has a history of sexual or violent offending against women, and whether they are deemed to be a risk to the safety of the other inmates. If the LTCB and TCCB determine that the transgender woman would pose such a risk, they can prevent them from being housed in the female estate.
This current case-by-case basis was affirmed in case law as recently as July 2021.
While this process is sometimes characterised by critics as a free ticket to self-id into any prison you like, the reality is starkly different. In reality the process is slow, bureaucratic and rarely successful. A 2019 report from the Ministry of Justice stated that while there are 163 transgender inmates in England and Wales who do not have a GRC, only 11 of these are transgender women on the female estate. Similarly, of the 129 transgender prisoners in men’s prisons, 0 identified as male. So the chances of a transgender people without a GRC being transferred are very slim.
Sexual Assault in Prisons involving transgender people
One of the key issues that critics have with the housing of transgender women in female prisons is that they argue transgender women are more likely to commit violent or sexual offences against the other inmates.
A report published by Fair Play for Women claimed that at least 41% of transgender women in prison were known sex offenders, and that the actual number was likely to be much higher. According to their figures, there are 113 transgender women in prison, and 13 of these were housed in female prisons. However, as has been detailed in a subsequent analysis, this report is based on the assumption that all of those housed in eight of the prisons surveyed (Ashfield, Bure, Isle of Wight, Littlehey, Rye Hill, Stafford, Usk and Whatton) were sex offenders. In fact, only five of the above prisons house sex offenders and most are category C prisons housing vulnerable prisoners.
The reality is far removed from these kinds of numbers. In 2020, Lord Keen of Elie, the Lords Spokesperson for the Ministry of Justice, wrote in response to a written question:
“[Since 2010] There have been no reported incidents of any type of sexual assault against prison officers by transgender prisoners. Since 2010, out of the 122 sexual assaults that occurred in the female estate, a total of five of those were sexual assaults against females in custody perpetrated by transgender individuals.”
Of these, it is not known how many of these assaults were committed by either female or male identifying transgender people. However, it means that on average, in the past decade, there is a report of sexual assault committed by a transgender inmate once every two years.
In fact, transgender inmates are statistically much more likely to be the victims than the perpetrators of sexual assault. Figures from the Ministry of Justice show that in 2019 alone, 11 transgender women being housed in the male estate were victims of sexual assault, meaning that there is a report of sexual assault of transgender women in male prisons almost once a month.
As is often the case in public policy, there are no perfect solutions to the accommodation of transgender people in prisons. While it is certainly true that the prevalence of transgender women assaulting cis-women inmates in female prisons have been significantly overstated, there will be some cases where transgender people have a history of violent or sexual offences committed against women. On the other side of the debate however, if transgender people are placed in prisons according to the gender they were assigned at birth they are at significant risk of harassment, violence and sexual assault. In discussions that can often become very polarised, both of these realities need to be considered, because as is often the case, the solution lies somewhere in the middle.
The case by case approach has all the foundations for an appropriate model. Clearly a transgender woman who is sentenced for tax evasion is less of a threat to cis-female inmates than one who is sentenced for sexual offences, and the prison system needs the operational flexibility to account for this. However, as it currently stands, the system swings much too far one way, making it incredibly hard for transgender people to be housed in prisons corresponding with their gender identity, and bringing with it significantly higher rates of sexual assault against transgender inmates.
Currently it seems that the prison system is more concerned about sexual assault against women than sexual assault against transgender people.