Been reading though it....
FWIW, this is our take:
The Divisional Court has ruled in favour of the Secretary of State for Justice that the MoJ’s policies in relation to the allocation of prisoners of the male sex who identify as transgender are capable of being operated lawfully. This was the first time that the High Court has considered the single-sex exceptions in the Equality Act (2010). As such, we knew this would be a challenging case to win.
Key to this lawful operation is the adequacy of risk assessment procedures. At paragraph 79: Throughout the policies, the need to assess and manage all risks is repeatedly emphasised.
The MoJ has repeatedly stressed that risk assessment processes are in place to keep women in prison safe when they are housed with prisoners of the male sex who identify as transgender, including those who have a GRC. However, the risk assessment tool that is used for adult men who have been convicted of sexual or sexually motivated offences, the OASys Sexual reoffending Predictor Score (OSP), is not used for male prisoners with a GRC because these prisoners are treated as female, and this risk assessment tool is not to be used with female offenders. There is no alternative risk assessment tool for use with women. Documents obtained by us through FOIA indicate that no consideration was given to the safety of female offenders when drawing up the conditions of use for the OSP with prisoners of the male sex who identify as transgender.
The judgement pointed to the unsatisfactory practices of data collection whereby prisoners with a Gender Recognition Certificate are not included in the statistics for transgender prisoners: prisoners of the male sex with a GRC have been recorded as female and only as female in all records. We are pleased that, as a result of this legal case, this practice is now changing. In response to a PQ asked by Andrew Rosindell, Alex Chalk confirms that from this year data will be reported on prisoners with GRCs. Accurate data collection is vital in order to assess the impact of the MoJ policies.
Last week, Alex Chalk confirmed in response to a PQ by Kenny MacAskill that the MoJ are in the early stages of reviewing the policy framework in respect of transgender prisoners. This is welcome. As the judgement stated at paragraph 72: It is necessary to be clear about what the court is, and is not, called upon to decide… it is a challenge to the lawful not the desirability of the policies.
The judgement by no means comments on the desirability of housing prisoners of the male sex in the female prison estate, nor whether the MoJ may take a different approach to ensuring the safety and dignity of this group of male prisoners. The judgement makes clear that the fears and anxieties of women in prison on being housed with prisoners of the male sex who identify as transgender are fully understandable, even in the absence of an incident such as a sexual assault. At paragraph 76: Many people may think it incongruous and inappropriate that a prisoner of masculine physique and with male genitalia should be accommodated in a female prison in any circumstances.
We concur with this view.
We hope that the recent decision by the MoJ to leave the Stonewall Diversity Champion Scheme signifies the intention to take a more balanced and equitable approach to policy development and implementation where the needs of female offenders are first and foremost in decisions that impact on the female prison estate. The judgement makes clear that these policies do impact on women in prison and that policies that seek to accommodate prisoners of the male sex who identify as transgender in women's prisons may discriminate against female prisoners.