Isolating trans prisoners ‘is not an easy answer’ The Times 21.03.19

The original article is here.

The problem of how to accommodate transgender inmates has left the prison system facing a sensitive dilemma. The subject polarises debate and social media makes matters worse.

Activists concerned about the safety of vulnerable women incarcerated with trans women are branded transphobic, while trans campaigners claim transgender inmates are doubly punished in a prison system that exposes them to the risk of harm.

The prison service’s latest approach involved the opening this month of the UK’s first unit for transgender inmates. The women’s prison HMP Downview is catering for three offenders who were born male and have gender recognition certificates (GRC), legally changing their gender. Officials made the move after the case of Karen White, a trans woman jailed for sex offences who sexually assaulted two women while on remand in a women’s jail.

Announcing the Downview unit, the Ministry of Justice (MoJ) said the trans inmates would not have access to the other women. But it later emerged that those prisoners mix with the general population “for certain activities such as religious services, the gym, or the library, always with a prison officer at their side supervising them”.

Harriet Wistrich, the founder of the Centre for Women’s Justice, says: “Safeguarding must be the critical issue, particularly given that the women’s prison estate contains a very high proportion of inmates who have suffered sexual abuse.”

Jane Ryan, a solicitor at Bhatt Murphy who represents trans people in the criminal justice system, says it is “imperative that prisons are safe for all women, including trans women.”

The MoJ stresses that “prisoner safety is our biggest concern and any decisions we take will seek to best manage the risks posed by each offender”. A spokesman says its policy for trans offenders remains under review.

Judging the scale of the issue is difficult because there are no accurate figures on the number of transgender people in the UK or the prison system. When the Commons women and equalities committee published a report on transgender equality in 2016, it cited evidence estimating that 650,000 people are “likely to be gender incongruent to some degree” — roughly 1 per cent of the UK’s population.

MoJ figures show that in March to May 2018, there were 139 prisoners who “reported living in, or presenting in, a gender different to their sex assigned at birth” — 0.1 per cent of the prison population. But those figures do not include prisoners who have already been given a GRC or have not told prison staff they are transgender.

Matthew Graham, a partner at Mowbray Woodwards solicitors in Bath, represented Tara Hudson, a trans woman who in 2015 was transferred from a male to a female prison after a campaign. While recent guidelines for prison staff are designed to ensure the majority of transgender offenders “experience the system in the gender in which they identify”, Graham says “the fate of the transgender prisoner remains a lottery”.

Research shows that transgender people have an increased risk of self-harm and suicide. In prison, some are therefore doubly vulnerable, because incarceration also increases the suicide risk. During the time the MPs were compiling their report, two trans women, Vicky Thompson and Joanne Latham, died while in custody in all-male prisons.

The White case, Graham says, has allowed the MoJ to recast the debate as being all about safety. “It isn’t,” he says, “it’s about respect and dignity. No part of the narrative of prison reform has been about safety in recent years, despite the appallingly high levels of violence and sexual violence in jails all over the country.”

Graham insists that “trans people should first and foremost be treated with the same dignity and respect due to any prisoner”. The too frequent response of isolation is “profoundly damaging and often inhumane”.

Ryan explains that prison allocation depends on individual assessment — if there is no GRC, the presumption remains that a person will be in the estate of their birth-assigned gender. If in possession of a GRC, a trans woman will be held in the male estate if her risk profile requires it. This “sensible” policy, she says, provides for individual assessment by consideration of evidence relating to transition, risk and history.

For many, the need for a gender recognition certificate is seen as an unhelpful hindrance in getting fair treatment. Ministers are considering reform. But Graham fears that the change “may seem utterly lost in the long grass of Brexit”.

For now, he suggests better training of probation officers and those managing the issues on the front line. He also recommends that pre-sentence reports prepared for trans offenders at risk of custody should always consider specific trans issues before sentence. “Many trans issues can be quite easily resolved by simple planning and forethought.”