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Feminism: Sex and gender discussions

Are transwomen still been housed in women’s prison?

13 replies

Fallagain · 27/11/2021 09:45

DH and I were discussing the Karen White case and we aren’t sure of the current situation.

OP posts:
NecessaryScene · 27/11/2021 09:57

There were some promising-looking links at the bottom of this thread from Fair Play For Women, but they seem to have been taken down - some corrections underway?

www.mumsnet.com/Talk/womens_rights/4410898-Trans-prisoners-increased-by-a-fifth-in-two-years-MoJ-report

Lolapusht · 27/11/2021 09:59

This may help

www.thetimes.co.uk/article/transgender-prison-population-rises-by-a-fifth-3c7w5mb2g

The MOJ recently released figures so there should be plenty about it online. Twitter had lots about it a couple of days ago.

LonginesPrime · 27/11/2021 12:31

The prisons service is adhering to the Gender Recognition Act, so transwomen with a Gender Recognition Certificate are treated for all purposes as being legally female, including for the purposes of sex as defined under the Equality Act 2010 (and therefore any single-sex exemptions under the EA).

Because of the GRA, they can't even record that a person with a GRC is trans unless that person identifies themselves as trans to them, as the point of the GRC is to ensure that person is treated as the biological sex they identify as. They say that even when a prisoner has a GRC, they manage the risk carefully and that this may include housing them in separate accommodation where deemed necessary. As we know, they don't always get this right, and only the people on the inside know how often they actually get this wrong. Not least as any assaults on female prisoners by transwomen with GRCs are recorded as female-on-female assaults, because of the GRA.

No-one knows how many biological males are in female prisons as the GRA has prevented the prisons service from recording this statistic since those transwomen are counted as female for all legal and statistical purposes. So literally no-one knows how many transwomen are in female prisons - not even the prisons service.

In addition to prisons having to adhere to the law in respect of trans prisoners with a GRC, the prisons service has also decided to take the approach that any male who says they identify as transwomen should be housed in the women's prison, unless the risk is deemed too high. They are housed in the prison matching their "legal sex" initially, but then can request to move across to the women's prison if they say they identify as female.

There's obviously no objective way to verify if what they say is what they genuinely feel, plus we're talking about convicted criminals (and often sex offenders) here. But their case is taken to a board who decides whether the person is genuinely a transwoman on the basis of various factors set out in Annex B of their transgender policy, which advises the board to have regard for whether the prisoner's mannerisms, hairstyle and use of prosthetics seem sufficiently womanly, but also helpfully reminds the board that the prisoner might not come across as particularly womanly because they don't have the confidence to do so and wouldn't be able to gain access to the props necessary to dress like a woman given that they are in prison.

So if they say they're a woman and act like it, or if they say they're a woman but don't act like it, they could be a genuine transwoman.

Other deciding factors include changing their name to a feminine-sounding name and updating their bank cards and driving licence to reflect this. Oh, and also, if they've been consistently using women's single-sex spaces (not sure how that squares with why they might be in prison in the first place, but that's for the expert womanness board to grapple with).

OldCrone · 27/11/2021 15:02

Because of the GRA, they can't even record that a person with a GRC is trans unless that person identifies themselves as trans to them

I don't think that's correct. If the prison service know that someone is legally female but physically male, there is nothing to prevent them from recording that fact. If I've got that wrong can you tell me exactly where it states this?

This seems to be the relevant part of the GRA:
www.legislation.gov.uk/ukpga/2004/7/section/22

It says here that it is not an offence to disclose this information if:

(a)the information does not enable that person to be identified,

So anonymous disclosure is allowed for statistical purposes.

These exceptions could also be relevant:

(d)the disclosure is in accordance with an order of a court or tribunal,

(e)the disclosure is for the purpose of instituting, or otherwise for the purposes of, proceedings before a court or tribunal,

(f)the disclosure is for the purpose of preventing or investigating crime,

If the prisons service didn't collect this information, they couldn't disclose it when required. There doesn't seem to be anything there which indicates prohibition of collecting data on people with GRCs, just strict regulation of when it can be disclosed.

LonginesPrime · 27/11/2021 18:19

I don't think that's correct. If the prison service know that someone is legally female but physically male, there is nothing to prevent them from recording that fact. If I've got that wrong can you tell me exactly where it states this?

That's how the prisons service have interpreted the GRA - their policy position and their explanation of how staff should apply the exemptions were in the link to their transgender policy in my previous post.

The government's response to this survey is further confirmation that they don't record this data.

Sure, they could record it and not disclose it to anyone, but they've chosen to take the approach of not even recording it. Which does make sense to me from an organisational GDPR perspective, despite how unhelpful it is in upholding people's rights. In my view, the problem is the law - if they were legally required to record this information and if the GRA hadn't undermined the EA2010, then the prison service wouldn't be doing what they're doing. Of course Stonewall hasn't helped, but if the law wasn't such a mess, public bodies wouldn't be legally allowed to ignore biological sex.

Obviously, they know people's sex on an individual practical level otherwise how could they administer healthcare or even do risk assessments or know that the transgender policy applies? But they've been very clear on the fact they don't record these figures in any official way.

It's similar to the crime statistics - they could record biological sex and they should, but they don't.

Manderleyagain · 27/11/2021 19:03

After the judicial review brought by the female prisoner who was sexually assaulted by a trans woman prisoner, the government brought in a statutory instrument which changes the law to allow disclosing of whether a prisoner has a grc, for the purposes of offender management. I linked to it on another thread, and it was linked from a twitter thread by fpfw (where I got it from).

OP the short answer is yes. The high court found that it was lawful so the policy that allows tw in womens prisons is still in place. If a tw with a grc is sent to prison, she goes to a womens prison and is assessed there to see if she should stay or be moved to the men's. (If she doesn't have a grc it will be the other way around). But according to new figures, while the number of trans prisoners has gone up, the number of trans women being transferred to womens prisons has gone down alot.

Manderleyagain · 27/11/2021 19:11

Here is the statutory instrument.
www.legislation.gov.uk/uksi/2021/1020/made

Now I understand what necessaryscene was getting at above. The new figures explained by fpfw (saying that the number of tw being moved to w prison has reduced) has been deleted. So that might be wrong.

334bu · 27/11/2021 19:54

In Scotland ,in the female prison estate, 12 male prisoners, some convicted of sex crimes and other violent crimes are housed with approx 400 female prisoners. This number does not include any transwoman with a GRC as they are included in the female numbers. No transmen offenders are housed in the male prison estate

334bu · 27/11/2021 19:55

All of these 12 prisoners are legally male and most I believe are fully male.

CheeseMmmm · 27/11/2021 23:46

Yes.

CheeseMmmm · 27/11/2021 23:47

Definitely in England and Scotland. Don't know Wales they have same laws so would be yes presumably. NI don't know.

Fallagain · 28/11/2021 08:30

Thank you everyone for your replies. I will read them more thoroughly later. For once I’m disappointed that I’m correct and DH was wrong.

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