New MoJ transgender prisoner policy: Sex Matters’ response

Sex Matters welcomes the Ministry of Justice’s announcement that men who identify as women will no longer be housed in women’s prisons if they have male genitalia or have committed sexual or violent crimes, with exceptions only to be made with ministerial authority. 

We join Woman’s Place UK and Keep Prisons Single Sex in welcoming the new policy and in saying that it does not go far enough.

No male prisoners should be housed in women’s prisons at all, regardless of whether they have convictions for violent or sexual offences, whether they have had surgery on their genitals, or whether they have a gender-recognition certificate.

What does the law say?

Men and women have been housed separately in prisons in the UK for 200 years. The Gaols Act 1823 stated:

“In all such Gaols, the Male and Female Prisoners shall be confined in separate Wards or Parts of the Gaol.” 

The UN Standard Minimum Rules for the Treatment of Offenders (otherwise known as the “Mandela Rules”) provide at rule 11(a):

“Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women the whole of the premises allocated to women shall be entirely separate.”

Rule 12 of the Prison Rules 1999, made under the Prisons Act 1952, states:

(1) Women prisoners shall normally be kept separate from male prisoners

The Prisons and Young Offenders Institutions Scotland Rules 2011 say:

126.—(1) Female prisoners must not share the same accommodation as male prisoners.

(2) The respective accommodation for male and female prisoners must, as far as reasonably practicable, be in separate parts of the prison.

None of these international standards, national laws or regulations says that it is acceptable for men to share accommodation with women if they have had their penis or testicles removed, or have not been convicted of a violent or sexual crime.

Why prisons should be single-sex

The Mandela Rules state:

“All prisoners shall be treated with the respect due to their inherent dignity and value as human beings. No prisoner shall be subjected to, and all prisoners shall be protected from, torture and other cruel, inhuman or degrading treatment or punishment, for which no circumstances whatsoever may be invoked as a justification. The safety and security of prisoners, staff, service providers and visitors shall be ensured at all times.”

Female prisoners should not be forced to share prison space with male prisoners or to pretend that they are women (and vice versa). This is a matter of fundamental human rights:, privacy, dignity, freedom of belief and expression and freedom from humiliating treatment (Articles 3, 8, 9 and 10 of the European Convention on Human Rights).

In order to provide a humane and safe environment, in particular for female prisoners, respecting their privacy and dignity, and complying with international standards it is necessary to house male and female prisoners separately. 

As a matter of practicality, even if you only want to make sure that there are no rapists in women’s prisons, drawing the line at convicted rapists will not do that. Only 1% of reported rapes end in conviction, so letting males in will almost certainly result in rapists being housed in women’s prisons.

The popular and political justification for housing men who identify as women in women’s prisons is that they would be unsafe in the men’s estate. But this argument does not stand up. Prisons keep a variety of vulnerable prisoners safe. The majority of trans-identified male prisoners currently remain housed in the male estate (there were 129 transgender prisoners in the male estate in 2019) – their rights as set out in the Mandela rules are respected within the male estate. 

How did we end up with men in women’s prisons? 

If trans-identified males can be safely housed in the male estate, how did we end up with some in the women’s estate?

As Michael Biggs sets out in his history of transgender prison policy, there has been an incremental ratcheting of rules over the past 30 years, driven by an  interaction between NHS and prison policies, individual legal challenges and the influence of advocacy organisations.

• Starting point: Separation by sex. “Male and Female Prisoners shall be confined in separate Wards or Parts of the Gaol.”
• Step 1: Allocation by genitals. From the 1980s to 2009, the prison service followed a rule that only those who had had genital surgery could be placed in a prison for the opposite sex. Existing prisoners were not eligible for surgery, so transfer was not possible. 
• Step 2: Surgery then transfer. In the late 1990s a man sentenced for life for kidnapping a woman at knifepoint won a case arguing that it was unfair to deny him genital surgery while imprisoned. Liberal Democrat politician Alex Carlile declared this to be an “important step towards giving transsexuals proper civil liberties”.
• Step 3: Transfer then surgery. Later on, a change in NHS policy made it impossible for someone serving time in the male estate to demonstrate they were “living as a woman” in order to be approved for surgery. Mark/Karen Jones, a “pre-op” trans-identifying male who had been convicted of a violent sexual offence, brought a judicial review against being held in the male estate in 2009 and was transferred.
• Step 4: Gender-recognition certificate or surgery. Following this case In 2011 the prison service shifted the criterion from genital surgery to legal sex change (which does not require surgery). The policy stated: “A male to female transsexual person with a gender recognition certificate may be refused location in the female estate only on security grounds”.
• Step 5: Case by case. In 2016 a new policy was brought in which further relaxed the regime, based on individual case-by-case assessment. It required neither a gender-recognition certificate nor genital surgery, but these would be among the factors considered (with a gender-recognition certificate carrying significant weight). 

At each of these steps, when the policy was widened, the rights of women who would be incarcerated with males were ignored or discounted. In the Mark/Karen Jones case, Dr James Barrett from the Gender Identity Clinic gave evidence, stating:

“There will probably always be a small number of [female]  prisoners who will choose to make an issue of the matter because they are the sort of women who enjoy conflict. If this patient is able to cope with protracted close proximity [to] women of that sort I would judge her able to cope with the less prolonged, more avoidable, travails of the civilian world.”

The latest change by the Ministry of Justice resets the ratchet back to something close to step 2, with criteria based on anatomy, and finally brings the rights and interests of female prisoners into some focus. 

However, it is notable that the prison service’s policy on searching in prisons has gone in a different direction: a new policy issued in October 2022 shifted the criteria about who searches who from being based on anatomy to being based on “legal sex” (i.e. having a gender-recognition certificate). The Prison Service is still struggling with the implications of this. It has not been able to answer the question of whether a male prison officer with a gender-recognition certificate is allowed to search female prisoners, visitors and staff. We argue that the human-rights-compliant answer is “no”. A gender-recognition certificate does not allow someone to undertake something which would otherwise be assault. 

An approach based on human rights

The ratcheting of the criteria since the 1980s shows there is no stable solution for allowing some males to be housed in women’s prisons. Draw the line at surgery, and the target moves to intention to have surgery. Draw the line there and it moves to gender certificates; draw the line at certificates and the target moves to identity. 

The reason for this is that human rights are universal: a trans person has the same rights whether they have surgery or not, and whether they have a government certificate or not. Rapists have the same human rights as shoplifters. 

So either you must discount to zero the rights of female prisoners not to be forced to pretend that a man is a woman, as Dr Barrett did, or you must take the human rights of female prisoners seriously, and stop being hypnotised by the idea that some men – by virtue of sex-change certificates or cosmetic surgery – have rights that others do not. 

It is time to ratchet back to clear sex-based rules, in order to respect everyone’s human rights. 

As Naomi Cunningham points out, section 9 of the Gender Recognition Act, which says that a person’s sex changes “for all purposes”, is not a magic spell. It means for all applicable legal purposes. To the extent that section 9 confers on a man a positive right to be treated as a woman (or vice versa), it must do so through the medium of some other enactment or common-law rule that attaches concrete consequences to a person’s legal status as modified by a gender-recognition certificate. And that rule must be in line with other people’s human rights. 

A gender-recognition certificate does not compel other people to pretend that a person has changed sex, or to share single-sex facilities and accommodation with them. Coercion and humiliation of others was never a right.

What powered the ratcheting mechanism was not an absolute right to “be the opposite sex”, but the tying together of other conditions and promises that engaged human rights. As Mark/Karen Jones put it:

“They will not consider me as a female until I have my penis removed… Yet they resist moving me to the female estate which would enable the surgery to be arranged.”

Untie these different conditions and the ratcheting stops. It becomes possible to concentrate on the underlying human rights. 

If a male prisoner wants a gender-recognition certificate, which would allow him to marry and collect a pension “as a woman”, this does not depend on him having his penis and testicles removed, but nor should it mean that he is moved into the female estate. 

If a man is considering the surgical removal of his penis and testicles, this should not be impeded by the fact that he is in prison (but should be informed by serious consideration for his welfare and human rights). He should not be promised that if he has his penis removed people can be forced to treat him as a woman. He will simply be a man who has had his penis removed. 

His decision to have his genitals removed, or to apply for a gender-recognition certificate, does not change the human rights of women in prison to be treated with the respect due to their inherent dignity and value as human beings, including their freedom of belief; their rights to be protected from cruel, inhuman or degrading treatment or punishment; and to have their safety and security ensured at all times.