Let female prisoners decide who can share their spaces

Richard Garside
Wednesday, 21 August 2019
Just under a year ago, I pitched into the debate over the housing of transgender prisoners.

Quite quickly it became clear to me that how we talk about transgender prisoners can itself be a barrier to debate, understanding and effective policy.

Some, for instance, reject the notion that the birth sex of transgender prisoners is a relevant consideration. As a result, referring to trans women as "male-born" is, for some, tantamount to transphobia.

Biology is not necessarily destiny. Respecting how someone feels about themselves is an important courtesy. That acknowledged, policy formation that does not take seriously the irreducibility of biological sex, and the way that it interacts with socially-constructed gendered identity, is unlikely to have a solid grounding.

Referring to trans women prisoners as "male-born" is not, in other words, a transphobic slur. It is a statement of biological fact that helps to ground the formation of policy around prison placements of those whose sense of identity diverges from their birth sex.

The immediate prompt for my intervention was the disturbing case of Karen White, a male-born prisoner with a history of sexual violence who identified as a woman and was placed in New Hall women's prison. While at New Hall, White sexually assaulted at least two female prisoners.

The challenges relating to transgender prisoners are far broader, and more profound, than the acts of one individual prisoner. The Prison Service, it appeared to me, had for some time been pursuing a, largely unchallenged, policy of, in effect, turning women's prisons into mixed-sex institutions. The longer-term implications of this, from a safeguarding and welfare perspective, were at best unclear.

Like others who intervene in discussions on transgender issues, I and the Centre for Crime and Justice Studies have been subject to accusations of transphobia, no-platforming attempts and public denunciations by small groups of activists.

While this has been unpleasant, I would not want to overstate the significance of these attacks. I and the Centre have a responsibility to engage in challenging and difficult areas of policy formation and, at times, lead the national conversation. We will continue to do so. More positively, I and Centre have started developing strong links with other individuals and organisations who share our values.

Unfortunately, none of those who have reacted with hostility have, to date, taken up the offer of dialogue. I remain hopeful that it is possible to work towards a respectful acknowledgement of differences, and an appreciation of all that we can agree on, which is probably greater (and more important) than the sum of our disagreements.

A year on from my initial intervention, two points remain, in my view, of particular importance.

First of all, transgender prisoners have as much right as any other prisoner to feel safe, respected and valued. As I wrote in my original post:

It is reasonable for those who express a gender identity at odds with their birth sex to expect that their feelings will be respected... It is important that prisoners who express a gender identity at odds with their birth sex are held in safe conditions while in prison.

That prisons as institutions operate in ways that systematically undermine the safety and well-being of both staff and prisoners is a strong argument for closing them down. For as long we have prisons, the Prison Service just has to do a lot better to ensure that all prisoners, including trans prisoners, are held in safe, respectful conditions.

Second, the needs and welfare of female prisoners in particular need to be front and centre in decisions over the housing of male-born transgender prisoners in women's prisons. As I also wrote:

When it comes to the proper management of prisons, it is important that the welfare and safety needs of all prisoners are taken into account.

My concern about the current approach is that it is appears to privilege the subjective feelings of particular, largely male, prisoners, at the expense of the needs of those prisoners, largely women, who have to live with the decisions imposed upon them.

Not unreasonably, many feel that the needs and interests of female prisoners are being ignored or devalued.

There are a number of good reasons why the needs and welfare of female prisoners are important considerations. This is not least of all because many are survivors of, often grotesque, male violence, with triggering and retraumatisation a very real issue.

As the recent report from Women and Girls in Scotland points out:

Staff were at pains to highlight with us that the issue is not always one of whether a trans person is themselves a danger, but that for many women simply having to share intimate spaces where they are vulnerable with someone who is male… is in itself re-traumatising

Those who dismiss such legitimate and very important considerations as mere transphobia are not engaging with any seriousness in what everyone can agree is a difficult, complex and emotive policy challenge.

Last month the Ministry of Justice published a new policy framework for the management of transgender prisoners.

In an important concession, the new framework acknowledges that the needs and welfare of female prisoners is a relevant consideration when it comes to the housing of male-born transgender prisoners. As it states:

The management of individuals who are transgender, particularly in custodial and residential settings, must seek to protect both the welfare and rights of the individual and the welfare and rights of others around them.

I was among a number of people the Ministry of Justice spoke to during the drafting of the new framework and think that it does represent progress on the previous, deeply flawed, policy. The new framework is, though, problematic in a number of respects, as I sought to set out in this Twitter thread.

My own view remains that we should reaffirm, in line with national and international standards, that women's prisons should hold, exclusively, girls and women whose birth sex is female. But that is only my view.

Those who should be deciding on who has access to women's spaces are women themselves. Rather than the decision being taken by civil servants and administrators, themselves unlikely ever to face imprisonment, how about the decision resting with female prisoners?

Once an in-principle decision has been taken by the Prison Service to house a male-born transgender prisoner in a women's prison, the female prisoners in that prison could be asked to affirm, or withhold, their consent to the placement.

If they withhold their consent, their wishes should be respected. If consent is given, this can itself be reaffirmed, or withdrawn, at appropriate intervals.

Prisons systematically strip prisoners of agency and choice in their lives. For female survivors of male violence – which is most women in prison – having agency and choice about which men you associate with, and under what circumstances, is very important for recovery and healing.

Giving female prisoners the right to decide which male prisoners, if any, they allow into their spaces would be an important step in the direction of greater prisoner agency and choice.

It would also be a clear sign that the needs and interests of female prisoners are being taken more seriously than is currently the case.