What are the implications, for the criminal justice system, of this month’s Supreme Court ruling on the meaning of ‘man’ and ‘woman’ in the Equality Act 2010?
In mid-April, the Court ruled that the words ‘sex’, ‘woman’ and ‘man’ in the Equality Act 2010 “mean (and were always intended to mean) biological sex, biological woman and biological man”.
The full judgment is clear, well-structured and easy-to-understand, though the 87 pages of detailed legal reasoning takes some stamina to get through.
As an easier way into this, three senior laywers – the former Director of Public Prosecutions Ken McDonald KC, Tim Owen KC and Karon Monaghan KC – offer an accessible overview of the legal ramifications of the Supreme Court ruling, in a recent episode of the Double Jeopardy podcast (Apple, Spotify).
The Equalities and Human Rights Commission (EHRC) have also issued this interim update, pending updated guidance to be published later this year. As the update explains, if an individual identifies as transgender, “they do not change sex for the purposes of the [Equality] Act, even if they have a Gender Recognition Certificate (GRC)”.
The implications for the criminal justice system of the Supreme Court ruling should not be underestimated. After so many years when the law was wrongly applied, it will, though, take some time for organisations to process the ruling and amend their policies.
Police searches
There has been an ongoing argument over whether male-born police officers with a GRC certificating their sex as female, should be authorised to strip-search female arrestees. There is also the question of whether female officers should be expected to strip search male arrestees whose certificated sex is female.
There is the added complexity of what to do if an arrestee or officer, without a GRC, self-identifies into a gender different from their birth sex.
A few days after the Supreme Court ruling, the British Transport Police reportedly changed their guidelines, to specify that “same-sex searches in custody are to be undertaken in accordance with the biological birth sex of the detainee”, rather than their gender identity. We should expect further clarification of police policies in this area, going forward.
Prisons
The majority of male prisoners who identify as women have always been held in the male estate. A relatively small number of male prisoners, however, continue to be held in women’s prisons. To my knowledge, no female prisoners who identify as men are held in the male estate.
Yesterday, the Justice Secretary Shabana Mahmood, told parliament’s Joint Committee on Human Rights that the current policy on trans prisoners “is not dissimilar” to the position set out by the Supreme Court. The Ministry of Justice would, though, be reviewing the current approach “to make sure that that policy still stands to scrutiny”.
I suspect the issue might be a bit more complicated than the Justice Secretary implied. The Supreme Court ruling has made clear what a number of people have argued for some time: the practice of placing some male prisoners in women’s prisons – even it if is only a handful – makes them mixed-sex institutions.
This matters because the Supreme Court was clear that a service can not be considered single-sex if it admit members of the opposite sex. Indeed, if ministers continue with the status quo, they may find it difficult to justify why women’s prisons should be open to some male prisoners (those who identify as women), but not others (those who don’t).
As Karon Monaghan KC explained in the podcast mentioned above, to retain their single sex status, services “will have to exclude… all biological males, whether they have a gender recognition certificate or not”.
It seems to me that ministers broadly have three options:
- Redesignate some or all women’s prisons as mixed-sex institutions, alongside a single-sex male estate, applying criteria for determining which males might be housed in these mixed-sex institutions, alongside women and girls, and which males should not be.
- Continue with the current fudge. They could, for instance, designate self-contained wings in women's prisons as male prisons.
- Operate women’s prisons as single-sex institutions with no male prisoners.
There is also, as Jo Phoenix has argued, a question of whether male officers should work in women’s prisons.
Crime reporting and crime recording
In recent years, the media has taken to describing individuals accused of crimes according to the gender they identify as, rather than their birth sex. In one recent well-known case, for instance, a murder committed by a male in Oxford was, for months, reported by the media as if the perpetrator was a woman.
Reporting male offences as if they were committed by women is bad for the public understanding of crime (women commit very few murders, for instance). It also undermines trust in crime reporting (can I believe what I am reading?). The Supreme Court ruling should help clarify what it means to report crime accurately, including in relation to the sex of the accused.
Some of the confusion in crime reporting comes from a tendency among, at least some, police forces to treat the sex of an arrestee according to self-identification, rather than birth sex. I have previously written on how this introduces inaccuracy into the official crime statistics. If the police class just one male convicted of murder as female, the total annual number of female murder convictions goes up by around five per cent. If just one murder by a boy is classed as if it was committed by a girl, the number of murders committed by girls doubles or more.
The Sullivan review on statistics, published in March, highlights a number of other areas where confusion between sex and gender results in inaccurate statistics related to crime and justice.
While the Supreme Court ruling relates, strictly-speaking, to the understanding of sex and gender in the Equality Act 2010, accurate statistics are important to the application of equalities laws. I therefore hope that it will act as a prompt for official bodies to adopt more rigorous recording standards.
