I am coming out of semi-retirement from writing about sex and gender to write this, because it’s about women in prison, a group that desperately need more attention from people interested in politics and policy.
The High Court has been considering the question of transgender women (i.e. people who were born male) in the female prison estate. That’s after a legal action was brought by a woman in a female jail who says she was sexually assaulted by a trans prisoner. The prison service hasn’t denied that this assault took place.
The claimant, was imprisoned between October 2016 and June 2020, argued that prison service policy in England and Wales is unlawful because it exposes women in the female estate to the increased risk of sexual assault by transwomen prisoners, a risk that is not similarly posed to male prisoners in the male estate.
That prison service policy, in essence, says that at least some transwomen offenders should be allowed to serve their sentence in the female estate if they wish. The claim failed and the court ruled that prison policy is lawful. But the ruling remains hugely significant and deserves close reading.
For context, the court heard that a significant number of transwomen in jail are there for sexual offences. In March/April 2019, there were 163 transgender prisoners, of whom 81 had been convicted of one or more sexual offences. 129 of those prisoners were allocated to the male estate, 34 to the female estate.
There remains debate about the statistics here, and the Ministry of Justice is reviewing its data collection methods. But Lord Justice Holroyde reached this conclusion:
I can accept, at any rate for present purposes, 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.