Transgender and in prison
This article covers 4 key areas:
1.
the
segregation of female to male transgender defendants in male prisons and the
article 8 ECHR issues that this gives rise to;
2.
the
risk of violent and sexual offences being committed against male to female
transgender defendants when they are sent to male prisons;
3.
the
questions that criminal practitioners need to ask their transgender clients who
are serving terms of imprisonment; and
4.
the
remedies available to transgender inmates who are segregated or attacked whilst
in prison.
Segregation
of female to male transgender prisoners in male prisons
In this section, I will use
the term ‘male to female transgender person’ to describe someone who was born
physiologically male and wants to have gender reassignment surgery to become
physiologically female.
The key case that looks at
this issue is R (on the application of
AB) v Secretary of State for Justice and another.[1]AB
was a male to female transgender person who had attempted to rape a female
stranger and committed manslaughter of her male partner. AB was physiologically
male but wanted gender reassignment surgery. AB was legally recognised as
female on the basis that she had been awarded a section 9 GRA, GRC, but in
order to be allowed to have gender reassignment surgery she was required to
live as a woman for 2 years in a female prison.[2] As part of her sentence,
AB was imprisoned in a male prison. When the Secretary of State refused to move
her to a female prison, she was instead kept as a segregated inmate in a male
prison. This segregation included more onerous segregation conditions than she
would have been under in a female prison because it included restrictions on
what types of female clothes and make up she could wear when outside of her
cell.[3]AB sought judicial review
against the Secretary of State for Justice and the Governor of HMP Manchester
to challenge the decision of the Secretary of State to imprison her in a male
prison and not to transfer her to a female prison.[4]
The Queen’s Bench Division of
the Administrative Court found that this breached AB’s article 8 ECHR right to
a private life.[5]
The Court found that AB’s rights were sufficiently precise and significant to
engage article 8 of the Convention and that the interference with AB’s autonomy
was a significant and personal one. The Court found that the interference went
to the heart of AB’s identity as a transgender woman and that this was
acknowledged by the Secretary of State in recognising that AB should be
entitled to proceed with the process of gender reassignment. Therefore, AB’s
article 8 rights had been breached and it was for the Secretary of State to
justify why that interference was proportionate.[6] The Secretary of State
argued that due to lack of resources, moving AB to a female prison would be too
expensive and that in any event she would likely be in segregation in a female
prison whilst she adapted to her new surroundings.[7]
The Court went on to find
that the decision to keep AB segregated in a male prison was not in accordance
with the law and that the Secretary of State had failed to consider certain
relevant issues including the effect, on AB, of continued detention in a male
prison. The Court found that the Secretary of State had failed to consider the
cost of not transferring AB to a female prison and the possibility that the
period of AB’s segregation in a female prison may not be very long.[8]The Court found that
preventing AB from being transferred to a female prison was likely to frustrate
her and lead to an increase in her risk profile.[9]
The
risk of transgender defendants suffering physical and sexual violence in male
prisons
The key point to note in
cases where a male to female transgender defendant is being sent to a male
prison is the importance of sending the defendant to a prison that matches
their psychological but not necessarily their physiological gender. Edney[10] argues that male to
female transgender defendants who are sent to male prisons on the basis that
they are physiologically male, despite wanting gender reassignment surgery to
become physiologically female, are at greater risk of sexual violence in
prison. It is known that, in male prisons, threats of rape and sexual assault
are used to intimidate and dominate other inmates. Youthful inmates, feminine
inmates and physically weak or homosexual males are targeted
disproportionately. Therefore, sending male to female transgender inmates to
male prisons puts them at risk of sexual and physical violence. Additionally,
segregating transgender inmates for their own protection puts them in more
onerous conditions than the general prison population and therefore they are
disproportionately punished. Edney summarises his research on this topic by
explaining that the consequences for transgender people of a prison system that
does not incorporate their concerns are significant and include high levels of
sexual and physical violence and medical treatment that’s quality and
suitability is arbitrarily dependent on the prison which they are being sent
to.
Whilst Edney’s research
focused on the American prison system, there is very little UK focused academic
literature on this issue. What is evident is that violent and sexual attacks on
transgender inmates in UK prisons are happening.[11] If you discover that your
male to female transgender client is being attacked or segregated there are a
number of steps you can take:
·
If
your client has been remanded in custody or given a custodial sentence, you can
make representations about what is happening to your client and why they should
be transferred to another prison. These representations can be made orally or
in writing to the governor of the prison.
·
Make
representations at the sentencing hearing as to which prisons would be suitable
for your client i.e. female prisons and prisons where hormone treatments would
be available;
When working with transgender
defendants who are being sent to prison, the questions that need to be asked
are as follows:
What
gender does the transgender defendant identify as?
This will affect the medical
and psychological needs of the defendant. Also if they are physiologically male
but identify as female, sending them to a male prison may lead to the article 8
ECHR issues outlined above.
Will
they be segregated due to their transgender identity?
If the answer is yes, you
need to consider whether this will breach their article 8 ECHR rights and also
whether this will amount to disproportionate and discriminatory punishment. You
should consider the possibility of segregation in the prison that your client
may be moved to and the conditions that could be placed on them there as well
as in their current prison.
What
medical treatment will they need in prison in order to make their gender
transition and what therapy will they need to supplement the aforementioned
medical treatment?
The answer to this question
will help the court send your client to a prison with the requisite healthcare
facilities and therapy for their specific needs. These may include: hormone
treatment, laser hair removal, counselling and gender reassignment surgery.
Remedies
To remedy the issues above
you will need to consider the possibility of complaining to prison governors by
making written or oral representations on your transgender client’s behalf. You
could then consider making a judicial review application if needed. For more
information on this issue you should consult the 2016 Ministry of Justice:
‘Review of the Care and management of Transgender Offenders’ report.[12]
[1] R (on the application of AB) v Secretary of State for Justice and
another [2009] EWHC 2220 (Admin)
[2] Ibid [7]
[3] Ibid [5]
[4] Ibid [1]
[5] Supra 14
[6] Supra 39 [53]
[7] Ibid [9] and [60]
[8] Ibid [73]
[9] Ibid [56]-[78]
[10] Edney, ‘To keep me
safe from harm – transgender prisoners and the experience of imprisonment’ 9
Deakin L. Rev. 327 (2004]
[11] ‘Transgender prisoner at all male jail slashed across the face’ http://metro.co.uk/2016/10/24/transgender-prisoner-slashed-across-the-face-in-transphobic-attack-6212067/
(last visited 07/12/16)
‘Placing a transgender woman in a
men’s prison is a cruel punishment’ http://www.independent.co.uk/voices/comment/paris-lee-placing-a-trans-woman-in-a-mens-prison-is-a-cruel-and-unusual-punishment-a6923831.html
(last visited 07/12/16)
‘Transgender woman held in UK men's prison
raped twice and tried to castrate self’ http://www.sundayworld.com/news/crime-world/transgender-woman-in-uk-mens-prison-feels-destroyed
(last visited 07/12/16)
[12] ‘Review on the Care and Management of Transgender Offenders’ https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/566828/transgender-review-findings-web.PDF
(last visited 18/12/2016)