October 2019 Law Society Gazette Ireland
'Male-bodied transgender inmate housed with women
Criminal defence lawyer Robert Purcell says that the Gender Recognition Act 2015 has placed the State in an impossible position with regard to transgender prisoners.'
(extract)
The law is challenging for the courts and the Irish Prison Service, he believes, since there is, potentially, a safety issue for women inmates housed alongside a male-bodied prisoner.
Currently, a pre-operative, pre-hormone therapy, male-to-female transgender prisoner is being held in Limerick women’s prison.
This is understood to be the first time that an inmate, registered as male at birth, has been housed in a women’s prison in Ireland.
When before the court last July, the prisoner was in possession of a gender recognition certificate.
High level of monitoring
It is understood that the prisoner was assigned a high level of monitoring after being convicted of ten counts of sexual assault and one count of cruelty against a child.
The prisoner is accompanied by two officers at all times while in the common areas of the detention facility.
“The Irish Prison Service must accept all prisoners into custody, into whatever prison that a judge orders,” Minister Charlie Flanagan said in response to a parliamentary question from Aontú TD Peadar Tóibín, on 12 September.
Robert Purcell is chair of the Law Society Criminal Law Committee: “The law that was enacted in 2015 did not envisage this situation, and it puts the Prison Service and the courts in a difficult position because, obviously, if somebody is self-declaring that they have to be recognised, then they have to be dealt with on that basis, even though physically, they have not have made the [physical] transformation.
Problems
“I don’t think the legislation envisaged the ability of transgender people to be able to self-declare; and it didn’t foresee the problems it would cause if a transgender, self-declared person was held in a mixed prison,” he said." (continues)
Fíona Ní Chinnéide of the Irish Penal Reform Trust (IPRT) said: “This is a really complex situation for the prison service to manage.
“There are safety concerns, whether the transgender person is accommodated in a male prison or a female prison.
“However, as a situation that arises very infrequently, it is appropriate both that a policy is in place, and that the IPS manages it on a case-by-case basis.”
Prisoner safety
She said that many women in prison had prior experience of violence and abuse, including sexual, emotional and domestic abuse.
If a prisoner had a history of gender-based violence against women, then this would need to be taken into account in decision-making about placement and regimes, she said.
“It is also important to highlight what makes prisons safer. Prison safety is improved through reduction in overcrowding, provision of single-cell accommodation, access to mental and physical healthcare, and meaningful structured activities, such as education, training and work.
“Safety in prisons is undermined on the other hand by overcrowding, doubling-up in cells, long lock-up times, and lack of mental healthcare.”
She continued: “The Irish Prison Service cannot transfer anyone between a male and a female prison; they can only transfer within the female prison estate, or within the male prison estate.
Isolation
“There are complex challenges in the accommodation of any minority in what is a small prison system. The creation of specific facilities for transgender prisoners in Ireland would be largely impractical, and risk individuals being held in isolation.
“Solitary confinement and isolation can have severe and lasting psychological effects, and must be avoided for all prisoners. Assigning additional staff to ensure the safety of a prisoner is preferable to detaining anyone on their own. (continues)
www.lawsociety.ie/gazette/top-stories/male-bodied-transgender-inmate-housed-with-women-prisoners/