‘Female prisoners must not share the same accommodation as male prisoners’.
This excerpt from the 2011 Prison Rules and Directions for Scotland is both unequivocal and unqualified. How then have we moved in the intervening years to a situation whereby men/male prisoners who self-identify as women can lay claim to a place within the women’s estate?
It is worth noting that the majority of those claiming to be transgender in prison do not have a Gender Recognition Certificate (GRC) and/or did not identify as transgender prior to coming into prison.
The Equality Act 2010 is of relevance here in two respects:
- Firstly, ‘gender’, and ‘gender identity’, are not protected characteristics, rather the characteristic is ‘Gender Reassignment’
- Secondly, the law is clear that there are permissable exceptions to allowing even those with a GRC to access women’s spaces where that is ‘proportionate’.
Trans-rights organisations, while seeking to obscure these facts, are also committed to having the exceptions removed or having ‘Transwoman’ incorporated as a protected characteristic, making the exceptions irrelevant. However, in the meantime the Equality Act is clear that there is no legal requirement for prisons to hold transwomen in the female estate, GRC or no.
When the relevant prison service policy in Scotland was devised, prior to the Equality Act in 2010, the authors could not have envisaged that prison services would be dealing with the volume of those self-identifying as transgender doing so in 2020. Neither could it have expected that the Chief Inspectorate of Prisons (HMCIP) might find that up to 1:50 of all men in prison identify as transwomen or that the Ministry of Justice (MoJ) would be unable to refute the claim that more than 40 per cent of those might be sex offenders.
The potential impact on the relatively small women’s estate is clear. If worst-case HMCIP estimates are correct, there could be up to 1600 prisoners who are transwomen in the female estate, with over 600 of those being sex offenders, compared to around 30 female sex offenders now. Sex offender programmes designed for women, flawed as they are, would have to be completely redesigned to take the causation, pattern and volume of ‘male’ offending into account. Alternatively, existing programmes designed for men could be used, although that begs a further question: Is this not more proof that they are - for all intents and purposes - men?
Arguments to justify accommodating transwomen in women’s prisons are usually twofold:
- ‘Transwomen are women’, when both in law and material reality, they are not
- Transwomen are, ‘at risk’, in the male estate
There is some evidence of the latter in relation to the prevalence of assault by male prisoners. However to jump from addressing that, to suggesting the solution is to put transwomen in a women’s prison, is a considerable leap in logic and one not consistent with the response to others at risk in the male estate for example, sex offenders and gay men. No-one is making a case for these two groups to be accommodated with women.
Further, ignoring the multiple risks to women of holding men/male-bodied people in closed living spaces with them requires that the perceived needs of transwomen be prioritised over those of women. Instances of sexual violence against women in what should be safe private spaces, prisons, toilets, refuges and others, are now legion and yet, the ‘isolated incident’ defence is still proffered, often with a refusal to address evidence to the contrary. Moreover, since the, ‘not all men’ defence, is not accepted in relation to segregated spaces and services in the community, it is difficult to see how then the same argument when presented on behalf of transwomen, holds water.
As the governor in charge of women’s prisons in Scotland, I became increasingly dismayed at the rising numbers of transwomen in the estate and incidents related to their behaviour and this relative disregard for the impact on women’s mental and physical well-being.
There were numerous incidents over the course of a few years of inappropriate sexualised and aggressive behaviour and threats towards women by transwomen, and I have been told of others by concerned colleagues, prisoners and ex-prisoners. These incidents often caused real distress, and in women with serious mental health issues, outright confusion. It is true and to be commended that the Scottish Prison Service does not transfer any transwoman they consider to be an active risk to women’s physical well-being. However there is little consideration within the risk assessment process of the impact on other aspects of women’s welfare.
The fact that women have no effective avenue for query or complaint at what they might, not unreasonably, see as men being held with them, is disabling. The fear of being regarded or reported as, ‘transphobic’, or of being accused of committing a ‘transphobic hate crime’, is very real even though few of what trans rights organisations call ‘hate crime’, misgendering being one example, are actually crimes.
There is a final and very worrying aspect of this whole ‘debate’ and that is the uneven levels of opprobrium aimed at those on both sides who comment. Public sector workers are simply not able to express concern about, or opposition to, the trans-rights agenda, while those who speak in favour of it, do so free from threat of discipline, job loss or prosecution, or at the very least, of being labelled hateful. This must stop if discussion around a reasonable solution is to be had.
Rhona Hotchkiss LLM, BSc (hons) is a former nurse & retired prison governor who volunteers with several diverse charities and is a board member of two organisations.