Where sex matters | Prisons

Prisons

Keeping male and female prisoners in separate accommodation is one of the minimum expectations for the treatment of prisoners.

In the UK, Prison Rules state that male and female prisoners should be kept separate from each other. International standards also support this:

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

United Nations Standard Minimum Rules for the Treatment of Prisoners

There are around 3,800 women in prison in England and Wales (under 5% of the prison population). Women tend to have committed significantly fewer serious violent offences or sexual offences than men. Over 30% of female prisoners report a history of sexual abuse, compared with 10% of male prisoners. Almost 60% of women reported experiencing domestic violence.

What’s the problem?

Convicted male prisoners are held in women’s prisons throughout the UK, based on gender identity. The policy on Care and Management of Individuals who are Transgender applies to prisons throughout England and Wales. It states that:

All individuals who are transgender must be initially allocated to part of the [prison] estate which matches their legally recognised gender.

England and Wales Policy

Males who identify as transgender women but who do not have a GRC should initially be placed in a men’s prison, but can apply to be transferred to a women’s prison based on evidence of “living as a woman”.

Freedom of Information requests by Fair Play for Women in December 2020 revealed that there were 163 recorded transgender prisoners in England and Wales. Almost 50% had at least one conviction for a sexual offence. There is emerging evidence that the Prisons Service is failing to keep track of any of the data relating to transgender prisoners and in which estate they are accommodated.

The rules for the Scottish Prison Service Gender Identity and Gender Reassignment Policy for those in our Custody go even further than the England and Wales policy. It makes no distinction between males with a GRC and those without one. It states

A male-to-female person in custody living permanently as a woman without genital surgery should be allocated to a female establishment. She should not be automatically regarded as posing a high sexual offence risk to other people in custody and should not be subject to any automatic restrictions of her association with other people in custody.

Scottish Prison Service policy

If a male prisoner transitions to “living as a woman” during his sentence he will be moved to a women’s prison. The Scottish policy is embossed with Stonewall and Scottish Trans Alliance logos, giving the impression that this has been developed in consultation with and endorsed by both organisations. 

Holding males in women’s prisons introduces multiple risks to women, including fear, trauma and lack of privacy. There have been instances of sexual violence against women in what should be safe private spaces. Rhona Hotchkiss, a retired prison governor previously in charge of women’s prisons in Scotland, reports that there have been numerous incidents of inappropriate sexualised and aggressive behaviour and threats towards women by trans-identifying men. These incidents often caused real distress to women whose mental health is already vulnerable.

“I am asking [prison managers] to err on the side of caution, because there is emerging evidence that certain men are jumping on the trans bandwagon to access, and harm, very vulnerable women in prison.”

Frances Crook, Chief Executive, Howard League for Penal Reform.

 

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Updates

  • Claims that trans-identifying males are at risk of poor mental health, sexual violence and suicide if placed in male prisons are based on little to no evidence.

    A policy in search of evidence 

    Why we need to treat with caution claims about the specific harms of keeping trans-identifying men in male prisons

    21st March 2023

  • No male prisoners should be housed in women’s prisons.

    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...

    6th March 2023

  • Should a GRC give a man the right to strip-search a woman?

    Searching for a simple answer

    What does a gender-recognition certificate actually do? The question comes into sharp focus when people are forced to undress, or have to submit to intimate touching. It is a question of central importance to HM Prison and Probation Service’s policy on searching.  Human rights As the Divisional Court in...

    22nd February 2023

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    7th February 2023

  • Really, Charlie? over picture of Charlie Falconer gesticulating

    Charlie Falconer’s testimony

    The Women and Equalities Committee held an evidence session on 31st January on the Gender Recognition Reform Bill and the Equality Act. It featured Robin White, Barrister at Old Square Chambers; Naomi Cunningham, Barrister at Outer Temple Chambers (and Sex Matters’ Chair); Dr Michael Foran Senior Fellow, Policy Exchange...

    2nd February 2023

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    The Equality Act 2010 protects everyone’s rights and covers everything from schools to hospitals, pubs to sports, and everybody’s workplace. It includes protection against sex-discrimination, and allows single-sex services. But on 13th December a judge in Scotland pronounced that Equality Act does not recognise biological sex as a protected...

    16th December 2022

  • Mass harassment in HM Prisons and Probation Service

    As reported in The Telegraph today, HM Prisons and Probation Service’s Pride in Prison and Probation (PiPP) staff network has circulated documents for Trans Awareness Week telling MoJ staff to recognise a series of words and phrases as “transphobic dogwhistles”. The PiPP is an official staff network, with a...

    20th November 2022

  • Say NO to self-ID in Scotland

    Self-ID: tell the Scottish Parliament your views!

    When the Gender Recognition Act came into force in 2004, it was a single regime for the UK. The Scottish Executive at the time considered whether Scotland should have separate legislation, but rejected this approach due to “cross-border anomalies”. In 2019 the UK government stepped back from its plan...

    3rd May 2022

  • Were we unkind?

    We have had this email about yesterday’s post on the prisons judicial review to which we think we should respond:  The first thing we want to say to the writer is “thank you”. We mean that. If one of our own supporters writes this to us, then it’s a...

    4th July 2021

  • The law must protect women in prison

    Today the High Court handed down a shocking and disappointing judgment, that the Ministry of Justice has not broken any law in its policy of housing fully intact men who identify as women in women’s prisons, despite the judges recognising: “a statistically greater risk of sexual assault upon non-transgender...

    2nd July 2021

  • Truth and reconciliation

    How should the public sector leave the Stonewall Champions Scheme?

    6th June 2021

  • Time to #LeaveStonewall

    This is the letter we have sent to the CEOs of the 850 organisations that are members of the Stonewall Diversity Champions Scheme. Re: Leaving the Stonewall Diversity Champions Scheme We are writing to call on you to withdraw from the scheme, both for the sake of your own...

    29th May 2021

  • Is Gender Recognition an “access all areas” pass?

    The Gender Recognition Act 2004 was passed with little public scrutiny or consideration for women’s rights. A critical question concerns the provision in Section 9 that a gender recognition certificate changes a person’s sex for all purposes. Is this an “access all areas“ pass?  When the Act was passing...

    14th April 2021

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