The ruling handed down in FDJ v SSJ in the High Court of Justice last week is further proof, were it needed, that UK law does not work for women. In dismissing the claim by FDJ, a woman prisoner who had suffered a sexual assault by a male prisoner whilst in a women’s prison, the judges have exposed the failings of the UK criminal justice system and its blatant disregard for women’s rights, our safety, privacy and dignity.
We stand in solidarity with FDJ and all other women prisoners who are expected to sacrifice their rights in the furtherance of the rights of male prisoners who have transgender status.
Women in Prisons
Women make up 5% of the total prison population in England & Wales (in Scotland the figure is 5.5%).
- 80% of women have been sentenced for a non-violent offense.
- 70% women in prison are survivors of domestic abuse.
- Women prisoners are more likely to report mental health problems, physical disability, having drug and alcohol problems, money worries and housing worries and twice as many women as men self-harm.
- Women in custody are five times more likely to have mental ill health than those in the general population.
- Women from an ethnic minority group more likely to be in prison (18% vs. 14% in general population) with Black women particularly overrepresented (9% in prison vs. 3% in general population).
- Recent research by Glasgow University found that 80% of women prisoners have had a serious head injury; 89% of those had sustained the injury as a result of domestic violence.
- 90% of children of imprisoned mothers have to leave home as a result
The judgment acknowledged the negative impact that the presence of male prisoners is likely to have on women in prison:
I fully understand the concerns advanced on behalf of the Claimant. Many people may think it incongruous and inappropriate that a prisoner of masculine physique and with male genitalia should be accommodated in a female prison in any circumstances. More importantly for the Claimant’s case, I readily accept that a substantial proportion of women prisoners have been the victims of sexual assaults and/or domestic violence. I also readily accept the proposition (for which Ms Hogarth provides evidence) that some, and perhaps many, women prisoners may suffer fear and acute anxiety if required to share prison accommodation and facilities with a transgender women who has male genitalia, and that their fear and anxiety may be increased if that transgender woman has been convicted of sexual or violent offences against women.
Despite this, the judgment decided that the Ministry of Justice (MoJ) policy on the placement of male transgender prisoners is lawful and that male transgender prisoners convicted of sex offences can be accommodated in the women’s estate.
It also accepted that the policy puts women at potential greater risk:
I have already accepted that art.3 and art.8 are engaged, and that the unconditional introduction of a transgender woman into the general population of a women’s prison carries a statistically greater risk of sexual assault upon non-transgender prisoners than would be the case if a non-transgender woman were introduced.
The disregard for women by the law could not be more blatant.
Inadequate data collected in prisons
The Court also expressed concerns about the paucity of data on which the MoJ policy relies:
One matter that does concern me is the possibility that HMPPS may not hold accurate information as to the numbers of transgender prisoners (both those with GRCs and those without)… accurate information on the numbers of transgender prisoners (either with or without GRCs) is not held in any central list.”
The policies cannot be effectively applied unless HMPPS knows which prisoners are within their scope. …This a matter of real importance and, in my view, one on which HMPPS needs to have a very high degree of confidence.
We share the concern noted by Justices Holroyde and Swift about the lack of reliable data regarding the numbers of transgender prisoners and trust that Her Majesty’s Prison and Probation Service (HMPPS) and the Ministry of Justice will now put in place systems to ensure the collection of such data.
The law fails women
Although some are claiming this is a victory for equality, it is clear that the judgment stirs up more dust than it settles.
The Judgement highlights the importance of risk management and a careful case-by-case assessment of the risks, yet the former prisoner, FDJ, asserts she was sexually assaulted by a male transgender prisoner with convictions for serious sexual offences. Her experience demonstrates very clearly, as with the case of Karen White, that individual assessments of the risk posed by male prisoners in the women’s estate are already failing women prisoners.
The challenge was to the policy, which the court correctly states has to balance the rights of male transgender prisoners and women prisoners. Women in prison can still challenge the application of that policy in particular cases.
Whilst WPUK welcomes such challenges, we are aware of the burden this places on individual litigants. This injustice now requires a political solution
We are pleased that Birnberg Pierce, a law firm long associated with the championing of human rights, represented the claimant in this case. Perhaps their involvement will help to retire the notion that fighting for women’s rights is evidence of bigotry. We hope that it will encourage more radical lawyers to reconsider their aversion to representing women asserting their rights.
The failure to invoke the single-sex exemption of the Equality Act to protect the safety and dignity of women in prison is just the latest example of injustice and contempt that women face in our society. Given that the MoJ has been unwilling to invoke single-sex exemptions, and given that the MoJ differentiates between prisoners with and without a GRC, any liberalisation of the regime for legal sex change would represent still further harm to women in prison. This is one reason why it was so important to oppose and turn back government plans for self-identification. However it is clear that proper application of the single-sex exemption is still required.
In deciding that the MoJ policy is in line with the law, the judges have exposed how badly the law works for women and how much work needs to be done.
We are very grateful for the courage of the claimant in bringing this judicial review. In doing so, she has contributed to the clarification of a policy issue that will help all of us better address and tackle such injustice.
Political Change needed for women in the criminal justice system
What we need now is nothing less than a complete overhaul of the criminal justice system and this will only now come about with mass pressure for political and legal change.
It is our belief that the number of women sent to prison can and must be massively reduced. The women’s estate must be exclusively for female prisoners. A move to smaller, more geographically dispersed, multi-functional custodial centres that better meet the needs of women prisoners as recommended in the Corston report is long overdue. Any such centres must also be single-sex.
We have previously identified some key actions that need to be undertaken to instigate real progress for women in the criminal justice system:
- End the practice by the criminal justice system of allowing offenders to self-identify their sex – particularly in relation to violent and sexual offences.
- Better support and protection for women prisoners, including pregnant women and women with mental health issues.
- Implement the recommendations of the Corston and Angiolini reports and reduce the imprisonment of women.
- Effective resourcing and implementation of community-based sentencing for women offenders.
- Where women serve custodial sentences, accommodation must be single-sex to protect their privacy, safety and dignity.
We also believe that more must be done within the male prison estate to safely accommodate gay, trans, binary and gender non-conforming men.
Take action on women’s prisons
Please contact your political representative and demand action on women and women’s prisons.
Below is a model letter to use as a base. Please adapt to add some of your own details. We know personalised letters are much more likely to be taken seriously and get a proper response.
- You can contact your MP here
- Once you have sent your email, please complete this quick form we can keep track of which MPs have been contacted.
- Once you have received a reply, please complete this quick form so we can collate responses.
Dear (name of MP/MSP/SM/AM)
I am writing to draw your attention to the judgment in a judicial review of the Ministry of Justice’s transgender prisoner policy, which was published on 2 July.
It concludes that male transgender prisoners convicted of sex offences can be accommodated in the female prison estate.
Justices Holroyde and Swift were of the view that the Minstry of Justice policy is lawful, even though they acknowledge the vulnerability of women in prison, who are very often the victims of male violence.
I was very shocked by this finding and would like to ask you, as my MP, whether you concur with the judgment. If UK law permits such a policy, then the law must be changed.
I look forward to hearing from you.
NB: *We use the terms male transgender prisoners to refer to all male prisoners who could be classed as transgender under the MoJ policy, irrespective of GRC status..
We believe that it is important to share a range of viewpoints on women’s rights and advancement from different perspectives. WPUK does not necessarily agree or endorse all the views that we share.