Trans women in prison: another moral panic ?

One issue that comes up again and again is that women prisoners need to be protected from the risk created by trans women inmates being assigned to women’s prisons. Even some people not generally sympathetic to gender critical positions cite this as a concern. Should they be concerned ?

Let’s begin with some facts. As of 2019, there were 163 transgender prisoners in England and Wales of whom 81 have had at least one conviction for a sexual offence. On the face of it, the number of sexual offenders seems surprisingly high, and more research here would be useful; but this shouldn’t be taken, as some have done, to conclude that 50% of trans prisoners are sex offenders. The actual number of trans prisoners is likely to be far higher than the reported 163, because many prisoners don’t declare their trans status, possibly because they’re on short term sentences or for reasons of their own personal safety. And comparatively few short term prisoners will be sexual offenders.

Of the 163, just 34 were allocated to the female estate, including seven sexual offenders. Most people would argue that this is seven too many, and I’d be inclined to agree, but we have to bear in mind that each case is assessed on its own merits. For instance one factor that seldom gets reported is that the hormone treatment given to trans women who transition reduces their libido. In the decade from 2010 to 2019, out of 122 reported sexual assaults in women’s prisons, just five were perpetrated by trans inmates. This is dwarfed by the number of reported sexual assaults against trans prisoners in all prisons in England and Wales: 11 assaults in 2019 alone.

The real level of violence in prison is far greater than these figures suggest. Here’s ex-con Sophie Campbell :

Violence is everywhere. It puts you on edge. You have to be alert as a situation can escalate rapidly. The serious sexual attacks or rape often go unreported – most women don’t even bother attempting to report an incident. There are so many hurdles you have to jump to report to a police officer, so incidents remain hidden. Thankfully I was never a victim of a sexual attack, but I was sexually harassed by one male prison officer. I informed the prison, the outside judge, the chaplaincy and Independent Monitoring Board (IMB), but received no assistance, like most women who were sexually assaulted.

When concerns are being raised about the threat posed by trans women, but the more prevalent threat from male prison officers is completely ignored, that’s a good indicator that what we’re seeing is a moral panic.

The case of Karen White was shocking and outrageous. When she was imprisoned in 2017, although she’d been for nights out in drag, she’d shown no interest in transitioning, and was taking no medication. In addition she had a long history of violence and controlling behaviour, including in 2001 convictions for indecent assault and gross indecency committed against a 12-year-old and a nine-year-old boy. Yet within a very short space of time the prison service had accepted her claim to be a trans woman and had transferred her to New Hall women’s prison. All accounts of her time there are pretty harrowing. In 2018 she pleaded guilty to three counts of rape against two women and two counts of sexual assault against the female inmates in New Hall.

At the start of 2017, the Ministry of Justice had brought in a new policy under which prisoners would be treated according to the gender by which they identified. There is no requirement for individuals to have obtained a GRC. The management of prisoners who self-identify as transgender in this way is considered by a Local Case Board (LCB), with any cases where risk to the individual or to others is identified being referred to a Complex Case Board (CCB).

The LCB that agreed to send Karen White to New Hall didn’t do their job properly. Her previous record alone should have been enough to guarantee a CCB referral. The Prison Service has apologised for the mistakes that it made.

Should there be a blanket ban on trans women going to women’s prisons ? I don’t think so, and even the Conservative government doesn’t think so. And in July 2021 the High Court ruled that the government’s policy was lawful. The arguments against: gender identity is a protected characteristic under the Equality Act, and exclusion of trans women from women only spaces can only be done in a particular situation where there are compelling reasons to do so. The duty of safeguarding applies equally to all prisoners, so prison authorities have to weigh up any risk to the individual, as well as those that they may come into contact with.

The current system is intended to provide safeguards by carrying out assessments of risk. The High Court judge who upheld the policy expressed confidence that LCBs and CCBs “will surely be well aware of the vulnerabilities of the women who are held in the female prison estate.” I would be more sceptical. I’d question whether LCB and CCB members have received the level of training necessary to understand both the needs and the risks posed by trans identifying prisoners.

There are other issues. As already discussed, many trans and non-binary prisoners don’t make themselves known to the prison authorities, and I don’t believe that the prison service has properly assessed the risks that they face, or taken appropriate measures. My belief is that it will be rare for anyone to falsely declare a new gender identity while in custody to gain access to women, because of the level of commitment that this entails. But the Karen White case shows that it is a real risk. In a prison environment I think it’s perfectly reasonable to say that someone who’s never spent any time living as a woman shouldn’t be allowed access to a women’s prison.

In conclusion: the number of trans women allocated to women’s prisons is very small, and all have been risk assessed, but the system needs to be better managed. There are much bigger risks to the safety of women prisoners that demand attention. At present, the dominant concerns are around mental health and self harm. There are only 12 women’s prisons in the UK, and many women are being incarcerated more than 60 miles away from home, making it impossible for their relatives and friends to visit them regularly. Since the start of the pandemic, their isolation has increased, while access to specialised services has diminished. This has given rise to an alarming increase in incidents of self harm. What these women need isn’t moral panics, it’s the provision of alternatives to prison for non-violent offenders; and it’s funding for support services for prisoners with drug addictions and mental health problems.

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