Mick Hartley

What's particularly astonishing about yesterday's court judgement on transwomen in women's prisons is that the judge acknowledged that women prisoners as a result "may suffer fear and acute anxiety", but just didn't care. No need for the familiar argument, that these women are exaggerating and making stuff up and transwomen offenders are all just lovely and gentle as lambs, when it turns out that their concerns are of no significance anyway.

James Kirkup in the Spectator:

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.

The judge also found that female prisons, who are disproportionately likely to have been victims of sexual assault, may be frankly terrified of being confined with a male-bodied sex offender:

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 … 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.

However, the court found that prison service policy remains lawful, because that policy must reflect not just the interests of female prisoners but also the interests of transwomen prisoners:

the subjective concerns of women prisoners are not the only concerns which the Defendant [the Justice Secretary] had to consider in developing the policies: he also had to take into account the rights of transgender women in the prison system.

And it turns out that the interests of female prisoners pale into insignificance compared to the rights of transwomen prisoners – that is, fully intact males, often guilty of sex crimes – who've decided to claim that they're women. 

That leads to the second point. In this case, the state has given to some transwomen offenders the right to be imprisoned in the female prison estate. That decision, made to accommodate the interests of those transwomen, comes at the expense of women in the female estate. The court found that those women are exposed to an increased risk of sexual assault and to anxiety and fear of such sexual assault.

The court further found that, under the law as it stands, it is legal for ministers to implement a policy that exposes women prisoners to that increased risk and to 'understandable' fear, because – assuming proper mitigation is in place – that risk and that fear are an acceptable price to pay to accommodate the interests of transwomen prisoners.

I’m not going to bother saying what I think of this situation, because I suspect I don’t need to. I also note that the Ministry of Justice is already reviewing the policy in question, so I think this won’t be the last word on the matter.

Instead, I will conclude by saying that the High Court ruling has confirmed beyond doubt something that a great many women have been trying to say for several years, often meeting with aggressive rejection and accusations of bigotry. The court confirmed that in some circumstances, accommodating the interests of male-born transwomen means imposing costs and burdens on women.

And that raises a question that society as a whole still needs to answer: why should women pay and suffer to serve the interests of people who were born male?

Because that's the way it's always been? 

From Sex Matters:

The judgment, and the Ministry of Justice policy, use phrases like “transgender women” and “non-transgender women”; the “gender with which they identify”; and the “biological sex assigned to them at birth”. 

This language obscures what is really happening. Male prisoners, including rapists, are being housed in women’s prisons, and female prisoners and prison officers are forced to pretend that these male people are women.