If you are reading this, you probably already know at least some of the facts about women in prison.
You might know that it is rare for women to be imprisoned – women make up only five per cent of the total prison population – and that it is very rare for women to commit serious offences.
You might also know that women in prison report a high incidence of abuse and sexual violence. This is usually at the hands of men, and often since childhood. It might not surprise you that women in prison have high incidence of mental health problems and that although women comprise a twentieth of the prison population, they carry out one fifth of all self-harm. The statistics are all here.
By now, you’re probably relieved to know that those working in the criminal justice system are advised to proceed on the assumption that female offenders are deeply traumatised. You’ll probably agree that it’s good that female-only spaces and services are emphasised as important in enabling women to tackle the complex issues surrounding their offending.
Given all this, you might conclude that women’s prisons must be single-sex. But no. Women’s prisons are actually mixed-sex and house males alongside women.
This is because it is Ministry of Justice and HM Prisons and Probation Service policy to house all male prisoners who have obtained a Gender Recognition Certificate (GRC), stating that they have obtained legal recognition of their acquired gender, in women’s prisons. The policy framework says that these male prisoners must be housed with women.
Although the policy framework refers to ‘exceptional circumstances’ whereby a male with a GRC would not be housed in the female estate, these can only be invoked if they would also be used in respect of a woman to say that she cannot be managed in a women’s prison. We don’t know of any case where the risk posed by a female prisoner is so great it means she must be housed in the male estate. Where these ‘exceptional circumstances’ appear to have no real life application, they do not act to protect women in prison from male prisoners.
You might be asking yourself why this is. Is it that prisons are simply doing what the law tells them they have to do? Well, no. The Equality Act allows all males to be excluded from single-sex spaces for women, where this is a proportionate means to achieve a legitimate aim. This includes the exclusion of those males who self-identify as women, and who therefore have the protected characteristic ‘gender reassignment’.
What about those with a GRC? Well, they can be excluded too. This is because the Gender Recognition Act 2004 (GRA) allows people to obtain legal recognition of acquired gender, not to change sex. In fact, the GRA makes specific provision where someone is still to be treated as a member of their birth-sex, even if they have a GRC stating they have changed gender.
Males with a GRC can still be excluded from single-sex spaces, because under the Equality Act these are based on sex, not gender. Indeed, the Equality Act defines a ‘woman’ as ‘a female of any age’. This definition doesn’t include a male with a GRC.
Something you might not know is that the GRA does not require individuals to obtain surgical reassignment or hormone treatment in order to obtain a GRC. For women in prison, this means that a male with wholly intact and fully-functioning male anatomy, if in possession of a GRC, must be housed with them.
You might now be thinking that at the very least there must have been an impact assessment looking at the effects on women of housing male prisoners with them, that this has been proven to be safe. But no. There has been no impact assessment of this policy on female prisoners.
You might assume that even if there’s been no formal impact assessment, surely there can’t have been any incidents where women have been harmed. Many reading this will know about Karen White, the male prisoner who in 2018, while being held on remand in a women’s prison, committed four sexual assaults on female prisoners.
You might not know about other cases where males convicted of violent and sexual offences have been housed in women’s prisons and where women have been harmed. In evidence we recently submitted to the Women and Equalities Committee, in response to an inquiry into the reform of the GRA, we reported incidents including sexually threatening behaviour, sexual exhibitionism, assault and sexual assault, as well as women being left frightened because they had no choice in sharing their spaces with male prisoners.
Keep Prisons Single Sex was set up to campaign for the rights of women in prison to the single-sex spaces they are legally entitled to, under the Equality Act. Housing male prisoners in the female estate introduces a level of risk that does not arise from female prisoners. These risks include rape and pregnancy. These are not normal consequences of lawful detention.
This is not a campaign against the rights of anyone, including prisoners, to be gender-non-conforming. Everyone should be free to reject gender stereotypes and expand the bandwidth of what it is to be their sex. Neither is this a campaign that doesn’t care about vulnerable prisoners. All prisoners have the right to be safe and secure. Other male prisoners may be vulnerable including males with disabilities, gay males and males from BAME groups – vulnerability is not limited to males who are transgender.
But the solution to meeting the needs of any vulnerable male prisoner must be grounded in law and in the evidence-based needs of female prisoners. Vulnerable males must be housed away from female prisoners. Meeting the needs of these prisoners is a challenge which men’s prisons must meet. The female estate is not a resource for the male estate to draw upon in order to ‘solve problems’.
In September of this year, Elizabeth Truss, Minister for Women and Equalities, issued a statement reaffirming the Government’s commitment to the exceptions in the Equality Act that provide for single-sex spaces for women. We believe it is time to hold the Government to this and to insist that prisons are single-sex. The law requires this. The evidence requires this.
Whose interests does it serve when males are housed in the female prison estate? It most definitely does not serve the interests of women in prison.
Dr Kate Coleman FRSA is the Director of Keep Prisons Single Sex, which was set up in 2020 to campaign for the right of female prisons to single-sex provision.