The government’s policy of housing transgender women in women’s prisons is legal, the High Court ruled.
One inmate, known only as FDJ, has taken legal action against a Department of Justice (MoJ) policy that allows inmates to be accommodated based on their gender identity “regardless of whether they have taken legal or medical measures to acquire this genre ”.
At a High Court hearing in March, lawyers for FDJ argued that accommodating transgender women in the Women’s Detention Unit “puts inmates at risk of sexual assault that would not occur in the past. ‘absence of this allowance’.
They argued that this was discrimination against cisgender women, as this risk did not exist when transgender men were placed in men’s prisons.
However, the Justice Department argued that the policy pursued a legitimate aim, including “facilitating the rights of transgender people to live in and as acquired gender (and) protecting the mental and physical health of transgender people.”
In a ruling on Friday, two High Court judges dismissed FDJ’s claim and upheld the legality of the Justice Department’s policies.
It cannot be argued that the accused should have excluded all transgender women from women’s prisons. To do so would be to ignore, in an inadmissible way, the rights of transgender women to live in the gender they have chosen.
Lord Justice Holroyde said: “It cannot be argued that the accused should have excluded all transgender women from women’s prisons.
“To do so would be to ignore, in an inadmissible way, the rights of transgender women to live in the gender of their choice. “
FDJ had not called for all transgender women to be excluded from women’s prisons, but instead challenged policies on how trans women who were convicted of sexual or violent offenses against women were housed.
However, Lord Justice Holroyde, sitting with Justice Swift, said the trans woman’s criminal history was a factor that existing policies needed to consider.
“The need to assess and manage all risks is repeatedly emphasized” in all policies, he said.
The judge said that a transgender woman, whether or not she has changed her legal sex with a gender recognition certificate (GRC), who is deemed fit to live in the general population may be subject to restrictions.
He continued, “In an exceptional case, a high risk transgender woman, even with a GRC, may be transferred to the men’s estate due to the higher level of security available there.”
The court also heard that expert groups were also involved in the process when assigning transgender prisoners and are “expressly required” to take into account the trans woman’s criminal history, anatomy, and behaviors and relationships. sexual.
Lord Justice Holroyde continued: “In my opinion they can be expected to be astute in detecting any case of a male prisoner who for sinister reasons simply claims to want to live in the female sex.”
He concluded: “Policies require careful assessment, on a case-by-case basis, of the risks and of the ways in which the risks need to be managed.
“Properly applied, this assessment results in non-transgender inmates only having contact with transgender inmates when it is safe to do so. “
FDJ claimed to have been sexually assaulted in prison in 2017 by a trans woman with a RCMP who is not admitted by the Justice Department.
Her lawyer argued that transgender inmates are five times more likely to commit sexual assault in women’s prisons, referring to a statistic provided in response to a parliamentary question.
However, this request was rejected by the judges, who called it “misuse of statistics”.
The judge said statistics on transgender women in women’s prisons were “unsatisfactory” and said it was clear the numbers were low.
(Some inmates) may experience acute fear and anxiety if they have to share prison accommodation and facilities with a transgender woman who has male genitalia and their fear and anxiety may increase if that transgender woman has been recognized. guilty of sexual or violent offenses against women
Lord Justice Holroyde added: “I can agree, at least for current needs, that the unconditional introduction of a transgender woman into the general population of a women’s prison carries a statistically higher risk of sexual assault on women. non-transgender inmates than would be the case if a non-transgender woman were introduced.
“But this statistical conclusion ignores the risk assessment required by policies.”
However, Lord Justice Holroyde noted the vulnerability of many women in prison, stating: “I readily accept that a substantial proportion of female prisoners have been victims of sexual assault and / or domestic violence.
He also said he fully understood the concerns of the FDJ, adding that some female detainees “may suffer from acute fear and anxiety if they have to share prison accommodation and facilities with a transgender woman who has organs. male genitals and that their fear and anxiety may increase if this transgender woman has been convicted of sexual or violent offenses against women ”.
Responding to the ruling, FDJ said: “I am disappointed with today’s judgment, but I am glad that the court recognized that women in prison are a vulnerable group and that many women in prison have been victims of violence. domestic and sexual violence.
“In raising this challenge, I have not sought to prevent trans women in prison from living with dignity, nor to exclude all trans women from women’s prisons.
“However, I believe that trans women who have a history of violence and sexual offenses against women should not be in a situation where they can put our safety at risk.”