The creation of mixed-sex prisons by stealth

The 1823 Gaol Act stipulated that women’s prisons would house women and be entirely staffed by women (and likewise men’s prisons by men).

Fast forward two centuries and the presence of male prison staff in female prisons in the UK is now taken for granted. Yet, there has been no parliamentary discussion of the introduction of men into women’s prisons (males who identify as women excepted) and little to no questioning by penal reform lobbying and campaign groups.

What is more, there is no publicly-available information about the number of males in female prisons (or vice versa) or any studies ascertaining the impact of this on the regulation and governance of prisons as organisations.

How did this come to be?

Male staff in women’s prisons

Nowadays, just short of 40 per cent of public sector prison staff are female.

We have no publicly available breakdown of the sex of private sector prison staff. This is important because around 35 per cent of women in prison are incarcerated in two private sector prisons: Bronzefield and Peterborough. The second of these, Peterborough, is a men’s prison that contains a separate women’s prison.

As of December 2022, the public sector prisoners employed 14,373 female and 21,709 male staff. The ‘Women’s Estate Region’ (which covers all the public sector female prisons) workforce headcount is approximately 2,000 staff.

Anyone who has visited a female prison will know, anecdotally, that male officers in female prisons are not the exception. Yet there is no easily-available information on where or how many there are.

How did this happen?

One of the paradoxical effects of the Sex Discrimination Act 1975 was to test the idea of that sex is a genuine occupational qualification (GOQ) in the employment tribunal courts.

Until 1982, ‘cross-posting’ (a euphemism for staff working in prisons opposite to their sex) was rare. In male prisons, there might be a few women in administrative or hospital roles. Likewise in the female estate there would be a few men working in administrative or hospital roles.

In 1983, the Equal Opportunities Commission initiated an employment tribunal on behalf of a female catering staff employee who was excluded from working in the male estate.

Interestingly, the Prison Service supported her case. The Prison Officers’ Association opposed it, arguing that prison rules at the time prohibited opposite-sex searching and reallocating the duties of the female staff member in question would, because of chronic staff shortages, result in a compromise to the security of the prison.

The tribunal accepted this argument and agreed that the sex of the prison officer, as defined in the prison rules, was a GOQ. Yet, between 1983-1988, the Prison Service – bound by law to implement the Sex Discrimination Act 1975 – introduced a a more lax cross-posting policy.

In 1988, and shrouded in mystery due to a lack of retrievable documentation, the ‘Consultative Agreement on Cross-Posting’ replaced the ad hoc approach adopted in the previous five years.

The agreement stated that “the only prison officer positions that can be exempted under the GOQ provisions are those numerically defined as necessary to ensure that the tasks impinging on prisoners’ right to privacy and decency are done by officers of the ‘appropriate sex’”.

In other words, prisons were to establish a quota of appropriate sex postings. All other posts were open and not to be specified by sex. In the case of female prisons, the quota would represent the minimum number of women needed as prison officers to ensure that prisoners were searched by women.

The next step in the story happened in 1995 when Mrs Hoare (who worked in a male prison) brought an industrial tribunal case on the grounds of sexual harassment and discrimination against a male prison officer. The outcome of the tribunal was that the Prison Service and the Prison Officers’ Association had to review their policies on creating a mixed-sex workforce as part of their equalities duties.

With that, the original vision of the 1823 Gaol Act for the provision of single sex prisons was, in effect, abolished.

Reviewing what scant research and written history there is around creating mixed-sex prison workforce one issue stands out. What the Prison Service and Prison Officers’ Association seemed most concerned about was not the effect of introducing men into women’s prisons – and most notably, from a 21st century perspective, its impact on female prisoners – but how ‘integration’ of female prison officers might threaten what had been, until then, an all-male workforce.

Among the few exceptions to this orthodoxy were the Chief Inspectors of Prisons, Sir David Ramsbotham and Dame Anne Owers. By 1997, Sir David noted, up to 25 per cent of prison staff in female prisons were male. He also noted

Most staff in direct contact with prisoners in most prisons for women are female, as is proper: male staff cannot search female prisoners, observe them in all circumstances, or manage them in some reception and residential situations.

A decade later and Sir David’s successors as Chief Inspector,  Anne Owers, noted that there were too many male staff in female prisons.

Sex as a genuine occupational qualification

The issue of the placement of male prisoners who identify as women into the female prison estate brings into sharp relief the differences between men and women in terms of the crimes they commit, the links between women’s sex-based inequalities and questions of managing the risk of predatory males who may also identify as women.

For me, the remaining unanswered question is much wider: has the original need for single-sex prisons somehow disappeared over the two centuries since 1823 Gaol Act?

Admittedly, part of the justification for the 1823 Goal were highly sexist ideas of women’s fragility and corruptibility, combined with a desire to reform female prisoners according to equally sexist notions of respectability and decency. But that was only part of the justification.

The other part was a correct desire to ensure female prisoners’ safety and security and the challenges that mixed-sex prisons create vis-a-vis pregnancy, sexual harassment and sexual violence.

Perhaps it is time to return to a question about whether sex is a genuine occupational qualification when it comes to working in prisons and not just take for granted that the only problem of mixed-sex prisons is the problem of having a mixed-sex prisoner population?

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Jo Phoenix is Professor of Criminology at the University of Reading and one of our trustees.