Prisons Judicial Review: Judgement

[KeepPrisonsSingleSex]

It's finally here...
The judgement in the prisons judicial review R (FDJ) v SSJ
will be handed down by email at 10.30 am today...

Here is a reminder of what it was about:

www.keep-prisons-single-sex.org.uk/judicial-review-campaign-update

It is interesting to know that the Genevan convention specifies that women should be treated with all consideration due to their sex. Women deprived of their liberty should be in separate quarters than men and under immediate supervision of women.

Is the judge saying the UK is not even upholding the Genevan convention in time of peace?

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.

The TRAs are on Twitter celebrating a"win".

They cite the statistic that 60% of transwomen are assaulted in male prisons. I do not know the validity of this figure.

but it's important to note that male prisoners who are identifying as women not only have a higher sex offending rate that females but also of other males.

So this is handy to have when people tell us that no one will go through the hassle of saying they're a woman to access victims?

Because these are either predatory men identifying as women to access victims, which ''never happens'', or they're genuine TW with a higher sex offending rate than other men, which also ''never happens''.

sorry you didn't get the result you wanted.
Don't give up (something tells me you won't).
I never though this could affect me but now I know different.

So it's confirmed. Prisoners born male have means and ways in which they have the right to make use of prisoners born female, without female people's consent and against the female prisoners' best interest, because people born male are recognised as being the prioritised and more valued people within the equation.

I will be pointing out to my MP that I cannot understand this in any other way but sheer male supremacism. It has become normal to see female humans as lesser, less human, and they and their resources are seen, regretably perhaps but legally, as male property male people have entitlement to.

In a fucking British court of law.

@PronounssheRa

I think challenging through JR is difficult because the law recognises the legal fiction.

I wonder if the best approach is for women and girls who have been harmed in any way to start suing for damages, whether that is public bodies or private service providers.

Expensive though and would need crowdfunding

Not necessarily. A few wins at suing for damages and a whole field of 'no win no fee' law firms will open up. We saw a couple touting for business after the Bell judgement. Money talks and we need to be pushing at that open door.

So effectively, @KeepPrisonsSingleSex, the court is saying it's legal when done properly, but isn't necessarily being done properly and possibly shouldn't be legal?

Are the MoJ consulting any non-tra groups on the updated policy, do you know?

@teawamutu

So effectively, *@KeepPrisonsSingleSex*, the court is saying it's legal when done properly, but isn't necessarily being done properly and possibly shouldn't be legal?

Are the MoJ consulting any non-tra groups on the updated policy, do you know?

They are saying the policies are capable of being operated lawfully, therefore the claim fails. But this makes no comment about the desirability of the policies.

I did wonder about that Ova, and whether no win no fee would open up in this field. I think suing for damages will focus minds more than JR's.

All government departments should have some kind of risk register for current litigation and if there starts to be a pattern I suspect they will take notice.

They cite the statistic that 60% of transwomen are assaulted in male prisons. I do not know the validity of this figure.

Male prisons are very violent places, I suspect many inmates regardless of gender identity have been subject to some form of violence

It's all just a veneer really, isn't it? The idea of women having any shred of equality, or protection from harm is just a pretence.

This is disappointing, and obviously unjust, but the judgement may have come at the right time to galvanise public opinion to change the law so male prisoners are proactively excluded from women's prisons.

Can someone explain something to me please? If transwomen without a GRC are legally male, where is their "right" not to be placed in the male estate argued to come from? I thought that for the purposes of the EA2010, the comparator class for judging whether a trans person is being discriminated against is non-trans people of the same legal sex. So if a transwoman without a GRC is placed in a male prison, they are being treated in the same way as others of the same sex, which is presumably lawful?

So is it the case that there isn't a positive right for transwomen without a GRC to be placed in the female estate, but the MoJ have decided to do it anyway? So they are effectively 'gold-plating' what is required of them?

@sanluca

It is interesting to know that the Genevan convention specifies that women should be treated with all consideration due to their sex. Women deprived of their liberty should be in separate quarters than men and under immediate supervision of women.

Is the judge saying the UK is not even upholding the Genevan convention in time of peace?

yes, yes that is what the esteemed judges are saying.

But they'll get away with it though, as the US is the same.

So for women in prison its actually better to be in Saudi Arabia, a country that legilly mandates that a woman is half (is it half, it could be a quarter?) the worth of a man.

@Skinnytailedsquirrel

This is what institutional misogyny looks like.

Yep.

Pissed off by this ruling. Management? Management fails.

It would be bloody great if the levels of safeguarding that are applied to the welfare of children could be applied to vulnerable women (the old-fashioned sort) in prison.

@OvaHere Yes, yes we need to get a few judgments so the no win no fee crowd smell money and nature will do the rest.

So what happens to the women that are directly harmed by these policies. Can they go after MoJ for damages for not assessing and managing a known risk properly? Or are they just acceptable collateral damage?

That we 'don't know' "whether any were committed by transgender women with a GRC" is ridiculous and something I hope journalists press hard into.

That this type of data is still not being properly collected and that that lack of data is seems to keep being used to avoid doing anything is beyond oversight, I think. There can't be a problem if we're not recording it... we should at minimum have stats on sex and whether the assailants were guards or other prisoners. I'd add on GRC status when relevant and whether the assailant had priors for a sexual offense because that's really something these conversations could use, but we're left with crumbs of data and told there isn't enough to suggest anything yet. It's ridiculous.

@QueeniesCroft

It's all just a veneer really, isn't it? The idea of women having any shred of equality, or protection from harm is just a pretence.

Yep. They can't pretend this is about human rights any longer though.

@PronounssheRa

I did wonder about that Ova, and whether no win no fee would open up in this field. I think suing for damages will focus minds more than JR's.

All government departments should have some kind of risk register for current litigation and if there starts to be a pattern I suspect they will take notice.

They cite the statistic that 60% of transwomen are assaulted in male prisons. I do not know the validity of this figure.

Male prisons are very violent places, I suspect many inmates regardless of gender identity have been subject to some form of violence

I recall the judge in Ann Sinnott's case said something similar. That cases of individual harm need to be brought. It seems an arse about face way of settling equality law to me - wait until something bad happens then sue. I'm not sure we have any other choice as its starting to appear that JR is too blunt an instrument.

It reminds me of the saying about Health & Safety laws - that they are all written in blood because nobody will address dangers until it becomes too costly, in terms of lives and money, not to.

Utterly dismayed and disappointed. Is there any crowd funding, planned protests or anything we can do to help? What points should we raise with our MPs?

@GromblesofGrimbledon

"I fully understand the concerns advanced on behalf of the Claimant. 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. More importantly for the Claimant's case, I readily accept that a substantial proportion of women prisoners have been the victims of sexual assaults and/or domestic violence. I also readily accept the proposition (for which Ms Hogarth provides evidence) that some, and perhaps many, women prisoners may suffer fear and acute anxiety if required to share prison accommodation and facilities with a transgender women who has male genitalia, and that their fear and anxiety may be increased if that transgender woman has been convicted of sexual or violent offences against women....

However, the subjective concerns of women prisoners are not the only concerns which the Defendant had to consider in developing the policies: he also had to take into account the rights of transgender women in the prison system."

Yes, this is going to be dangerous for women. Yes, this is going to cause anxiety and fear in women.

But what's important is to consider the feelings of males.

Does anyone else think they put this out now as if they left it any longer public opinion would have moved on even further against TWAW?

@JustcameoutGC

So what happens to the women that are directly harmed by these policies. Can they go after MoJ for damages for not assessing and managing a known risk properly? Or are they just acceptable collateral damage?

Good point. Seems like grounds to sue the fucking pants off them. It'll happen.

Interesting judgement. Lawful if adequately risk assessed. We know that's not currently happening. I also wonder what the point is of single-sex exceptions if organisations can lawfully opt out of applying them in situations where women are demonstrably vulnerable. I doubt that parliament intended this to happen when they wrote the Equality Act 2010.

Thank you for your work though, KeepPrisonsSingleSex. Once again there's sunlight on these anti-women practices.

The EHRC all but spelled the next steps out in the Ann Sinnot case - individuals who are unlawfully discriminated against should sue the organisations in question.

I would have thought it's not something a government would want to invite given how overloaded our courts are, but it seems the way to go.

We've been debating and talking about doing so in various women's rights meetings and always came down in favour of challenging these policies in judicial review - for various reasons, not least because it then wouldn't be about financial gain and it would (if successful) help all people in the same situation.

But it looks like judicial reviews are not the best way to do this after all. Maybe international human rights laws and the European Convention on Human Rights should instead inform individual cases. (Which is an important, established path in fighting unlawful discrimination after all.)

Just to finish, according to the The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) women must be housed separately (Rule 11) and searches must be carried out by a member of the same sex (Rule 52).

Unfortunately, prison conditions in the UK do violate international standards in various ways, so compliance is not something the government seems to value, but in part that's because it's so much harder for a prisoner to sue.

FYI, here are the Nelson Mandela rules in full: www.un.org/ga/search/viewm_doc.asp?symbol=A/C.3/70/L.3

And I've quoted the two rules below that mention sex specifically.

Rule 11
The different categories of prisoners shall be kept in separate institutions or parts of institutions, taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment; thus:

(a) Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women, the whole of the premises allocated to women shall be entirely separate;

Rule 52
1. Intrusive searches, including strip and body cavity searches, should be undertaken only if absolutely necessary. Prison administrations shall be encouraged to develop and use appropriate alternatives to intrusive searches. Intrusive searches shall be conducted in private and by trained staff of the same sex as the prisoner.

I hope they get sued to infinity and beyond.