High Court ruling on male prisoners in women's prisons

Commenting on today's judgment, our Director, Richard Garside, said:

I always thought that this would be a difficult case to win. I'm disappointed that the Court decided against issuing a more robust ruling on the rights of female prisoners in relation to male prisoners who identify as women. There is, though, a lot to welcome in this judgment.

The court accepts that the decision to house male prisoners who identify as women in women's prisons means reducing the rights of female prisoners.Rights are a pie, the Court agrees, and female prisoners are being expected to give up some of their share to accommodate males.

The Court also agrees that male prisoners who identify as women have a higher rate of sexual offending than female prisoners. In other words, their sexual offending patterns are more in line with males, not females.

The Court recognises that accommodating males who identify as women in women's prisons does risk discriminating against female prisoners, and regardless of whether a male prisoner assaults a female prisoner. Their very presence could be enough.

The Court accepts that the housing of male prisoners in women's prisons may cause female prisoners to "suffer fear and acute anxiety". It's not transphobic. It is a perfectly reasonable and grounded concern.

The Court also notes that the Prison Service data collection on trans prisoners "lacked clarity, and left many questions unanswered", including in relation to the collection of sexual offences data.

So this is something of a pyrrhic victory for the Prison Service. It has been put on notice that its current approach undermines the rights of female prisoners (while doing so 'lawfully') and that it could be vulnerable to future legal challenge.

The Court ruled on "the lawfulness, not the desirability, of the policies". The undermining of female prisoners' right in favour of a small sub-section of male prisoners is, currently, 'lawful'.

Addressing this mess is a political challenge, as much as it is a legal one.

Download the full judgment below.