Canaries in the coalmine

Finally the issue of transgender prison policies has become news and can be debated.

The United Kingdom is one of the first countries in which ‘gender identity’ (gender reassignment) was recognised in law, following the case of Goodwin v UK and the introduction of the Gender Recognition Act 2004. UK law for the first time allowed changing one’s sex in the birth certificate without any medical or surgical modification. Since 2004, fewer than 6000 people have obtained a GRC. The number of people who have undergone sex reassignment surgery through the NHS has been even lower, below 1000.

UK law does not dictate sex separation in prisons. However, Rule 12 of the 1999 Prison Rules states: ‘Women prisoners shall normally be kept separate from male prisoners’. International law also contains soft law rules on the separation of the sexes in a prison setting, such as Rule 11 of the 2015 United Nations Standard Minimum Rules for the Treatment of Prisoners, the 2010 United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders and, in a European context, the 2006 European Prison Rules issued by the Council of Europe.

It is reasonably clear that women and men are housed separately to guarantee the rights of privacy, dignity and safety of women, up to and including avoidance of inhuman and degrading treatment or torture, in compliance of the peremptory norm prohibiting torture and inhuman and degrading treatment. Even when it does not meet the threshold of torture, it is degrading to force women to share intimate spaces with males, which may result in forced nakedness and lack of privacy, especially important to women, whose biological functions including menstruation, pregnancy, miscarriages and menopause require a degree of privacy from males.

In the Ginji v Serbia case, concerning a male inmate raped by his cellmates, the European Court of Human Rights considered that the State should have taken into account the Albanian ethnic origin of the applicant, which put him at risk of mistreatment (and rape), stating that:

a State must ensure that persons under the control of authorities and placed in detention are kept in conditions which are compatible with respect for their human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and that, given the practical demands of imprisonments, their health and well-being are adequately secured.

The same rationale should apply for the requirement of separating prisoners by sex, and not gender identity. Rape is a sex offence, and the gender identity of the offender is irrelevant to the risk to which women are exposed. In fact, Ministry of Justice 2020 data shows that the rate of sex offending in transgender males is highest of any group of prisoners.

Female prisoners are a vulnerable subset of women; 79 per cent of them are victims of sexual or domestic violence, so they are understandably fearful in the presence of men. Forcing a victim of rape to share accommodation with a male rapist can be considered a form of mental torture or inhuman treatment.

However, according to the latest guidance, prisoners with a GRC should be treated in accordance with their acquired ‘gender’. Although this is a small percentage, it means any male individual with a GRC is housed in the female estate, with no requirement of having taken any medical or surgical steps and regardless of offending history.

As a consequence, it is impossible to collect data on the number of sex offences committed by transgender males in female prisons. Professor Alice Sullivan reports that between 2012 and 2018, 436 individuals prosecuted for rape were recorded as women. As, in English law, the crime of rape requires the use of a penis these are 436 male crimes recorded as female crimes (there is a tiny number of women who are convicted of being accessories to rape and they may be included in this number). If the crime is recorded as a sexual assault, there is no way of knowing whether it was committed by a transgender male with a GRC, a transgender male without a GRC whose gender identity is recorded instead of his legal sex, or a female.

Transgender males without a GRC are not automatically housed in the female estate, but their transgender status has to be considered as a factor, together with a risk assessment, by the Initial Local Transgender Case Boards and Local Transgender Review Boards and by the Complex Case Boards if specific issues arise.

Ministry of Justice’s data reveals that since 2010 at least seven sexual assaults have been committed by transgender males without a GRC in female prisons.

The right of transgender males to be safe in male prisons is also a consideration, as they may be vulnerable to male violence (though I have seen no statistics on whether they are more vulnerable than other groups, such as young gay men). However, their safety cannot be bought at the expense of the rights of female prisoners, including because there is no mechanism in place to assure that male sex offenders will not claim transgender status to enter female prisons and in fact there is evidence this is happening in the UK. The best way forward is to guarantee the safety of transgender males within the male estate, for example by providing them with separate safe accommodation.

It is now time for the international human rights community to properly engage with this issue and determine how the sex-based rights of women can continue to be upheld when they conflict with rights granted on the basis of gender identity. Female prisoners are the canaries in the coalmine and they signal to us the consequences in real life of this legal conflict.

Alessandra Asteriti has an LLM and a PhD in international law from the University of Glasgow. She has taught human rights law and international economic law in the UK and in Germany.