UK: Transgender woman wrongfully held in male prison

In a recent decision of the English High Court, a claimant sought that the Secretary of State in charge of prisons be shown to be wrong in preventing her from moving from a male to a female prison. The claimant’s complaint was upheld by the court.

The claimant, a 27 year old pre-operation male to female transsexual, was serving life imprisonment for manslaughter and attempted rape. She had obtained a certificate under the Gender Recognition Act, and was for all purposes recognised as female. She had had hormone therapy and no longer shaved. She dressed and was generally recognised in prison as a woman. She wore makeup. The requirements of the prison were that she could dress as a woman in her cell, but had to dress as a man once out of her cell!

Under the Gender Recognition Act, the claimant was recognised for all purposes in law, except apparently in prison, as a woman.

Not surprisingly, for her protection, she was held in segregated. The bureaucrat refusing to transfer her cited part of the reason for that was that in a women’s prison she would be segregated, ignoring the fact that she was already segregated.

The claimant asserted that the refusal to allow her to move to a women’s prison prevented her from being operated upon, and also prevented her from undertaking the necessary courses that were required to enable her earlier release from prison.

The claimant stated:

“The prison service seems to have confused attitudes about all this. They
will not consider me as a female until I have my penis removed …
notwithstanding my gender recognition certificate. Yet they resist moving me to
the female estate which would enable the surgery to be arranged.
I feel an increasing sense of urgency to get this final stage completed. I have been
trying since I was 10 to get this sorted out and I am now 27. After 17 years and
when I am so nearly there, it is frustrating not to be able to progress to the
final stage. I sometimes worry that it might never happen. I feel in limbo, I
read in the papers about young people in the community who are getting the help
they need and that I asked for. Recently there has been a young person from the
north east who has had surgery at the age of 19. I am very happy for her but I
wonder why that could not have been me. It is not as though I am someone who has
asked for this later in life having tried to live a different life – getting
married and having kids and so on. I have tried to get help from a very early
age. I do get frustrated but I try to deal with this on my own. I do cry and let
my emotions out but I do this in the privacy of my own cell. It is not something
I can discuss with anyone in the prison.

The bureaucrat stated why he had refused the transfer request to the women’s prison, which apparently boiled down to money:

It is important to have in mind a number of factors when considering
whether it would be appropriate to allow the Claimant to be placed in the
general female estate (i.e. not in segregation): the specifics of her offending
history (which of course include an attempted rape of a female, as well as
manslaughter); the difficulty of sourcing any suitable interventions for her and
the time it will take to put something in place and then to monitor her response
in terms of reducing her level of risk; the lack of guarantees that her surgery
will definitely proceed, as this is a clinical judgment which is totally outside
the control of the Prison Service; concerns over how the female population would
react to her generally, and also specifically if they became aware of her index
offence. With all of the above in mind, there can therefore be no guarantee that
the Claimant, either pre- or post-operatively, would ever be suitable for
integration into the general female prison population.

There are serious detrimental effects of segregation on a prisoner over
a long period of time and I note the Claimant’s history of reacting badly to
frustration. This increases the likelihood that she could become progressively
harder to integrate into the general population, should she be moved to a
segregation unit in the female estate.

I would also say that following an unsuccessful move to the female
estate, it would be extremely difficult to move the Claimant back to the male
estate at that stage.

Notwithstanding the issues about risk and the immediate difficulties
of any transfer, there are also difficulties with keeping the Claimant on
indefinite or long-term segregation. While she has self-segregated in the past,
it is clinically undesirable for her to remain apart from her peers. Associating
with them is a necessary part of the therapeutic process, but is clearly not
possible while segregated.

There is the further difficulty with the very considerable cost
involved. No definitive long term costing has not been done yet. However, the
segregated regime of another male to female transsexual prisoner who previously
transferred to segregated accommodation within the female estate is estimated to
cost approximately £85,000 per year (in addition to the standard costs of
imprisoning any individual), This includes the costs of keeping that prisoner
ring-fenced with two dedicated officers, and a third trained for relief work, as
well as separate psychology and mental health costs, and costs for separate
exercise and education. This presents significant resource implications.

There are other concerns including concerns that other male to female
gender dysphorics may wish to follow any precedent set by the Claimant and enter
the female estate which would further constrain the limited number of available
segregation places in the female estate.

The court held that the decision was in breach of the European Convention on Human Rights, which meant that the claimant would be able to be transferred to a women’s prison.