Posted on 4th January 2016

2015 feels like an important year in the context of the LGBTI equality movement. Whilst there remains work to do in all fields, the success in protecting and increasing rights of gay and lesbian people has offered an opportunity for trans rights to receive heightened media scrutiny.

That scrutiny has revealed everyday inequalities faced by Britain’s Trans community. It has revealed heroes too, Captain Hannah Winterbourne being one such example. Winterbourne was in the middle of a tour of Afghanistan in 2012 when she decided she wanted to begin her transition. She has been supported actively by the British army and is now the Army’s transgender representative.

YouTube’s Alex Bertie, HuffPost Blogger Sabah Choudrey and Radio One’s Paris Lees have only helped keep Trans people in the public eye.

However, what is most striking in 2015 is the scrutiny that has been given to Trans prisoners. Their allocation and treatment within the prison estate has become an area of public debate. The Courts have been asked to consider the impact of placing a pre-operative Trans person woman in a man’s prison. And, on at least two occasions in the last year inquests have been held touching upon the death of Trans prisoners.

Despite this, the wrong Court has been asked to consider the legality of placing Trans persons in a prison which does not house the gender with which they identify. The question of whether a Trans woman can be held in a man’s prison is not for a Crown Court judge or a Coroner. Rather instead, is a matter for the Administrative Division of the High Court.

The statutory starting point is section 12(1) of the Prison Act 1952 which reads:

(1) A prisoner, whether sentenced to imprisonment or committed to prison or remand or pending trial or otherwise, may be lawfully confined in any prison.

This is supplemented with Prison Rule 12(1) provides that women prisoners should normally be kept separate from male prisoners.

The Prison Service has its own instruction in dealing with Trans prisoners: PSI 7/2011. When it comes to allocation, the decision is usually binary.

In most cases prisoners must be located according to their gender as recognised under UK law.

Of course that is limiting too. English law recognises binary gender, one is either male or female. Whilst there is gender reassignment in law, it does not necessarily provide a legal reflection of how a person self identifies. A person may self-identify as female but not have begun the medical or legal transition to that gender. Or, the cause of most difficulty for the prison service, how does one deal with the prisoner who has begun the medical and legal transition to the other gender but has not completed the same at the time of their imprisonment.

The Equality Act 2010 prohibits direct and indirect discrimination, harassment and victimisation in connection with gender reassignment. The most important aspect of this is any person who “is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex” is then protected from discrimination (whether direct or indirect), victimisation and harassment.

There is no doubt that the Prison Service will need to review urgently whether they are meeting their duty under the Equality Act. In particular when comes to protecting Trans persons from victimisation and harassment.

NOMS is undertaking a review of Prison Service Instruction 7/2011 to ensure that it is fit for purpose and provides an appropriate balance between the needs of the individual and the responsibility to manage risk and safeguard the wellbeing of all prisoners.

From the author’s point of view there ought to be a safe space created within the prison estate for prisoners undertaking or wishing to undertake gender reassignment. The number of prisoners involved is not, on the face of it significant, but the vulnerability of these prisoners is distinct.

If serious about equality the review must secure a 21st century policy which recognises that gender is not binary and that housing people on the basis of their anatomy is overly simplistic and unsafe.

This article was written by No5 Chambers Prison Law Barrister Ian Brownhill.

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