The High Court has rejected claims that housing trans women who’ve committed sexual or violent offences against women in female prison facilities is discriminatory to cis women.
A judicial review against the government was launched last year to determine whether the Ministry of Justice’s policy on the care and management of trans prisoners discriminates against cis women.
The High Court returned its judgement on Friday (2 July), stating that the policies “do not involve an unjustified or disproportionate intrusion with the [Human Rights Act] Convention rights of women prisoners”.
The landmark case was brought by an unnamed cis female inmate at HMP Downview, who said she was sexually assaulted by a trans woman inmate with a conviction for rape.
She argued that her human rights were violated by having to be in the same prison as trans women prisoners who have convictions for sexual or violent offences against women, and that such policies should be declared unlawful.
The case was significant as the claimant was arguing for trans women to be treated less favourably than cis women in the context of prison policy, which if successful could’ve set a concerning precedent.
The argument tested the bounds of the Equality Act, which prohibits discrimination but allows for exemptions in certain circumstances when a measure is deemed to be “a proportionate means of achieving a legitimate aim”.
Her lawyers said that the Ministry of Justice should be compelled to exercise these exemptions, making it lawful to discriminate against trans women in this particular case, even if their gender has been legally recognised under the Gender Recognition Act.
High Court case attracted ‘gender-critical’ supporters
The milestone case was supported by several so-called “gender-critical” groups, including Fair Play for Women and a new anti-trans campaign group called Keep Prisons Single Sex.
The latter explicitly takes aim at trans people on its website under a section titled: “Can a man really become a woman?”
“The clear answer to this is no, he cannot,” it answers. “No matter how he presents himself, what he wears, what he believes about himself, or what changes he makes to his body through surgery or medical treatment, a man remains a man. A man cannot become a woman. (Nor can a woman become a man).”
This prompted the grassroots LGBT+ group Bent Bars collective to intervene in the case. Permission was granted by the court in January 2021.
A member of the Bent Bars collective, Dr S Lamble, highlighted the “harmful stereotypes” employed in the claimant’s argument as well as their “misuse of statistics” about trans inmates.
“We intervened because we were concerned that some of the arguments put forth in the case were reliant on faulty evidence and unsound statistical claims about trans prisoners,” the group said.
“We also intervened because we were concerned that these incorrect claims would perpetuate harmful and damaging stereotypes about trans prisoners specifically and trans people more generally.”
The court recognised these concerns, with the judge specifically referring to the claimant’s “misuse of the statistics, which in any event are so low in number, and so lacking in detail, that they are an unsafe basis for general conclusions.”
High Court rules trans women should be housed in women’s prisons
The claimant’s arguments were ultimately rejected, with the court finding that the current polices are indeed “lawful” and do not violate the rights of cis women prisoners.
The court also clarified that the Equality Act exemptions are discretionary and do not have to be used. As the judge said: “The minister was under no obligation to apply them, either generally or in any particular case.”
The judge added that “the subjective concerns of [cis] 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”.
While he said he understood the claimant’s concerns, he concluded that the trans-inclusive policies are “capable of being operated lawfully, and in a manner which does not involve unjustified or disproportionate interference with the Convention rights of women prisoners”.
“Individual decisions may be susceptible to challenge, but that does not render the policies unlawful,” the judgement added.
The High Court ruling was welcomed by the Bent Bars Collective, whose member Elio said: “Group-based stereotypes and stigmatisation will not help to reduce violence in our communities. We need to address the underlying causes of violence, which are often related to inequality and discrimination.
“We see this case as an opportunity to have much needed public conversation about the current conditions and issues that prisoners face, and the pressing need to make greater efforts to prevent and reduce harm both inside and outside prison.”
Trans women in prison: What do we know?
The Ministry of Justice also reported 20 trans men – all of whom are in women’s prisons.
Trans people who don’t have their correct gender legally recognised will be housed in the prison estate corresponding to the gender they were assigned at birth, not their true gender. Trans inmates without legal gender recognition can apply for an individual case review to be considered for transfer to a prison corresponding to their gender identity, but the process is slow, bureaucratic and often unsuccessful.
Legal gender recognition is the process by which trans people can update the gender marker on their birth certificate, governed by the Gender Recognition Act. Since it came into force in 2004, just 4,910 trans peoplehave used the GRA to gain legal gender recognition – out of an estimated population of half a million trans people in the UK.
Figures released last year stated that out of 122 reported sexual assaults in women’s prisons in the past decade, five were perpetrated by trans inmates.
Meanwhile, the MOJ said that 11 transgender women prisoners were assaulted in prisons in England and Wales last year.
This means that there is a reported sexual assault in a women’s prison committed by a trans inmate once every two years, on average, whilst a trans woman is the victim of a sexual assault in a men’s prison nearly every month.