I posted this on the judgement thread where it got a bit lost but was wondering if there was any mileage in exploring the need to tighten up the wording of the Prison Rules 1999 wrt Women prisoners.
Because, incredibly, it seems from the judge's understanding of the Prison rules that women's prisons were never actually intended to be single sex (so we literally can't 'keep' them single sex).
Is this true?
Or is this another case where, as recently as 1999, no one thought that they would need to spell out as a statutory requirement that male and female prisoners must be kept separately as a self-evident truth, just like no one felt the need to spell out that sex is immutable in the GRA 2004.
This is the entirety of the 1999 prison rules on Women prisoners
12.—(1) Women prisoners shall normally be kept separate from male prisoners.
(2) The Secretary of State may, subject to any conditions he thinks fit, permit a woman prisoner to have her baby with her in prison, and everything necessary for the baby’s maintenance and care may be provided there.
www.legislation.gov.uk/uksi/1999/728/made
That's it.
I would argue that the immediate link being made to having babies in prison is because these were female people. Potentially breastfeeding Mothers. So when the word 'woman' was used in 1999 it was just the standard meaning of adult human female.
From the judgement:
"There is no statutory requirement that male and female prisoners be accommodated in different establishments, but rule 12(1) of the Prison Rules 1999 provides that –
"Women prisoners shall normally be kept separate from male prisoners."
If we unpack the phrase:
"Women prisoners shall normally be kept separate from male prisoners."
we can see the inequality/wriggle room is already baked in in 1999. 'Women' vs males. Not female.
Presumably 'normally' was to cover an incredibly rare case where the female estate could not manage a very violent woman?? Rather than the female estate being a place to put feminised males.
'Normally' now does a huge amount of heavy lifting.
The judge goes on to explain which kinds of men can be housed in a women's prison but egregiously swaps the word to female as if they can be used synonymously to refer to gender rather than sex. Where legally does this come from?
"The population of a female [sic] prison may include persons who were born female and identify as such 
(referred to in this judgment as "women"); persons who were born male but identify as female [thanks, Queer Theory], whether or not they have undergone any alteration of physical characteristics ("transgender women"); and transgender women who have obtained a GRC ("transgender women with a GRC"). It is important to the Claimant's case to note that both a transgender woman and a transgender woman with a GRC may retain male genitalia."
Were women's prisons genuinely really never intended to be single sex?
The Equality Act doesn't appear to think so. History and international law would appear to be in agreement
Where had transvestite or transsexual prisoners been housed before?
Was it just that in 1999 the lawmakers could not see where we would be 20 years later where now the word "woman" is highly contended ground and is expanded to include certain sorts of men?
Or is it the later updates to the Prison Rules which have shifted the meaning of words, because this highly contentious interpretation of 1999 has a definite whiff of the Whittles?