Why stop at keeping males out of female prisons?

It often divides prisoners into ‘the worthy’ and ‘the unworthy’, the dangerous and the vulnerable, in ever stranger ways of calculating and managing risk. The argument is happening in the absence of any actual research and so it plays out in a rather abstract manner.

Prisons as risky places

Those arguing the case that transgender prisoners ought to be placed in the prison of their self-declared gender identity claim that male prisons are very risky places. The argument is that the mental and physical health of transgender prisoners is at grave risk in the male estate.

The denial or failure of the prison to recognise their gender identity can potentially lead to suicide, the argument goes. Indeed, there have been six such suicides in the male estate since 2013. But there were 782 suicides of men who were not transgender and 31 of women over the same time.

Prison suicide is not, in other words, a specifically trans issue. It seems rather more likely that there is something about prisons that drives those incarcerated to suicide.

Some also claim that transgender prisoners in the male prison estate face potential threats of violence and victimisation from other male prisoners (and staff). It is difficult to know how to assess this claim.

The number of recorded sexual assaults in prison has gone up since 2010 from being measured in the 10s to being in the low 100s. The problem, however, is that sexual violence is notoriously under-reported, especially in prison, and any increase against such relatively small numbers may simply indicate changes in recording practices.

Whatever the realities, in relation to transgender prisoners in the male prison estate, the claim is routinely made that “sexual violence is endemic in [male] prisons”. The argument is then: the hypermasculine conditions of a male prison combine with individual transgender prisoners’ physical and psychological vulnerability to mean that the safest, least risky place for transgender prisoners who are legal males (and transgender prisoners with a gender recognition certificate and thus are legal females) is in the female prison estate.

The argument for female prisons to exclude male-bodied transgender prisoners is also based on risk. The presence of male bodied prisoners, we are told, can retraumatize and ‘trigger’ a significant number of female prisoners who already bear a hugely disproportionate burden of being victims of male violence. Evidence from Women In Prison confirms that somewhere between 60 and 80 per cent of female prisoners have been victims of male violence at some point in their lives.

Perhaps more important, though, the risk of a predatory male-bodied individual making it through official risk assessments may well be relatively low, but the consequences are exceptionally high. As transgender rights activists have phrased it: it would be putting the fox in the henhouse.

It is exceptionally challenging to ascertain whether the presence of male-bodied transgender prisoners does lead to greater (perceived or real) risk of sexual violence against female prisoners because no research has been conducted that can overcome the methodological problems of relying on sexual assault reports by prisoners to staff.

So, taken together, the argument is made that the safest, least risky, option for female prisoners is to ensure that female prisons are ‘kept single sex’.

Exceptionally rational in their assessment

Those who challenge concerns voiced by women’s campaigning groups about the stealthy introduction of mixed-sex prisons (for what else is the placement of people whose birth and legal sex is male in the female prison estate?) tend to make several arguments.

Women prisoners who ‘fear’ being accommodated alongside male-bodied transgender prisoners, they sometimes argue are irrational; their fear misplaced and caused by a lack of enlightenment (i.e. they are transphobic) and little understanding about ‘the realities’ of the risk they face. This is partly because they have fallen prey to alarmist media coverage (of which, I concede, there has been plenty) that trades in dubious stereotypes of transgender people.

Irrational? Easily duped by media coverage? Perhaps. We don’t know, as no research has been conducted. Yet, my memory goes back to the Islington Crime Survey, and how it drove a horse and cart through what was then called ‘the fear of crime thesis’ (i.e. that fear of crime is irrational because those who fear it most were statistically least likely to experience it).

The Islington Crime Survey sent teams of interviewers out to talk to women – revolutionary at that time – and lo and behold they discovered that those who had high fear had also experienced high levels of victimisation especially sexual assault, rape and domestic violence. The work of Betsy Stanko and other early feminist criminologists also debunked the idea that women are irrationally afraid of men.

Women prisoners are exceptionally rational in their assessment, as Matthew Maycock has recently demonstrated. He provides ample extracts from interviewing female prisoners in Scotland that demonstrate they have a subtle analysis of the situation.

They recognise that there are male transgender prisoners that pose no problem at all. They also recognise that some such prisoners manipulate the system because they think women’s prisons are an easier ride, and that some such prisoners make them feel extremely uncomfortable and at risk.

Residual imprisonment

I have also heard those who support a prison placement policy based on gender identification (thus self-styled radicals in the world of sexual and trans politics) use the language of actuarialism and risk management (the language of neo-liberal governance) to argue for so-called abolition (the language of critical criminologists and penologists).

The argument is an interesting one because it claims:

• prisons are inherently violent places because they are full of violent people (including staff). Violence and sexual violence are endemic in prisons (including from staff and in women’s prisons). Morevoer,
• prisons have failed to reduce crime (especially violent crime); and
• most people in both female and male estates are not there for violent offences.

Thus, the argument goes, rather than figure out where is safest for transgender prisoners, it is better to simply open the prison gates and retain incarceration only for those who commit violent offences.

I have some sympathy with parts of this argument. Incarceration is a spectacular failure in managing crime. Rehabilitative programmes (such as there are, especially in prisons and especially since COVID) are not working. Sexual violence outside prisons, especially against women, is truly at endemic levels and there is a growing policing legitimacy crisis about such violence.

But opening the prison gates to release non-violent offenders is not abolitionism – it is a call for prison reductionism and an argument for “residual imprisonment”. More than this, it sets up a moral apartheid by dividing the prison population into those worthy of our empathy (male- and female-bodied transgender prisoners and women who are vulnerable in the face of violent men) and those who are not (the violent men).

So here we are, in a dead-end argument about relative risks, relative vulnerabilities and who deserves to be accommodated alongside unsafe violent men. What a strange place. Yet, there is a way out.

An experiment in abolition

We need to recognise that the challenge of prison placement policies is not a challenge of having prisons that don’t match people’s identities. It is a problem brought about by sentencing.

Our courts sentence women with histories of victimisation at the hands of violent males, and mental health problems to prison as a means of punishing them for their less than law abiding behaviour. The same is true of everyone currently in our prisons. We need to deal with our sentencers and not just prisons. And, as Pat Carlen pointed out in 1989 in a lecture for The Prison Reform Trust, female prisons are not male prisons. They are much smaller and contain far fewer dangerous people.

In fact there are so few women prisoners that we could, as suggested by Carlen when the female prison population was only 1600, abolish women’s imprisonment as an experiment in prison abolition.

But this ought not be a simple exercise in reducing the numbers in prison and reducing prison size. This ought to be a truly ambitious experiment in rebuilding the lives of women whose histories have been blighted by the aggregate effects of poverty, of racism, of male violence.

It being such, there would need to be a massive investment programme in housing, in educational facilities, in drug and alcohol services, in positive family support services for those families and single mothers struggling with childcare responsibilities.

We would need to police and deal with male violence, for we need to stop forcing women to live with violent men because there are so few options. We need more funding for refuges and services for women so victimised.

So, yes, I support measures that stop the drive towards mixed-sex prison placement policy in England and Wales. But why stop at keeping males out of female prisons? Why not keep the women out as well? If the experiment proves successful then we have the blueprint for abolishing prison more widely.

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