The National, a scottish newspaper, has now clarified that the quote saying I had spoken in “favour of female trans prisoners being held in the male prison estate”, was in fact an interpretation of my views by three Scottish Greens groups, rather than actual words used by me. I thank them for changing the article to make that clear.
In 2015 I signed a letter calling for trans women to be housed in the female estate. The prison service did take a more open door approach for a short while, but after the case of Karen White gaming the system the rules were revised and a tighter filtering system was introduced to protect women in prisons. This pragmatic approach commands a cross party consensus and reflects the legal situation that trans people have access to women’s prisons, but this is not automatic and is decided on a case by case basis. Currently, over 90% of transgender women in prison are held in the men’s prison estate.
I recently made an unscripted intervention in the debate as I was frustrated at the polarised positions being taken on the safety of women and trans people in prisons.
Despite this, I feel the debate was useful as it allowed facts to be scrutinised and the revised process for assessing the safety of trans prisoners to be critically assessed. I made clear I would not support the amendment banning trans women from women’s prisons is they had been convicted of sexual or violent crimes.
I was assured by other speakers that any cases like Karen White, a sexual offender who falsely self-identified as a women in order to get access to the women’s estate, happened prior to the revised screening process being introduced.
We clearly need to reform the entire prison system, as I doubt whether this situation provides a sense of safety for everyone. As this 2018 article about the Scottish prison service states: “Good quality information and more research is needed into all of these issues, and perhaps the trans prisoner debate will encourage more scrutiny of the conditions, segregation practices and perspectives of all prisoners.”
My speech, in Hansard, reads:
“My Lords, I really did not want to speak today, because, whatever I say, I am going to get abuse, but I have been incensed by some of contributions. I point out, in an absolutely non-specific way, that the majority of speakers have been male, and they have spoken against the amendment. Two women have spoken for the amendment, because they perceive there is a problem. My party’s policy is that trans men are men and trans women are women, and I do not have a problem with that, but there are occasions when women in women’s prisons experience sexual predation by men who have falsely self-identified as women. The noble Lord, Lord Cashman, said that we are saying that all trans women are sexual predators. We are not saying that—of course not.
Will the Minister clarify whether trans men go to male prisons? My understanding is that they do not, because they would not be safe. What we are talking about here is keeping people safe. Vulnerable people of all kinds, whatever trans identity or sexual identity they have, should be kept safe. Clearly, prisons are the worst possible places to keep people safe; they are a nightmare. This Government are increasing the number of prisons. They are not trying to reduce the prison population and make our prisons safer; they are adding to the problem. Do trans men go to male prisons? Have there been cases where men have falsely self-identified as women and predated sexually on women? I have had emails and letters from women who have been abused by men who have falsely self-identified as women. What can we say to those women? We cannot say, “This is an ideology and we’re trying to look good”; we have to be serious about people who are abused, whether they are male or female, or trans men or trans women.
I would not vote for this amendment, because it is too hardline. I accept the issue of safe accommodation—that seems very sensible; I do not see it as demeaning at all. Prisons are demeaning; safe accommodation sounds very safe to me.
Only men in this debate have spoken against the amendment. Why do men think that is okay? I do not understand. They are ignoring the fact that some women are predated upon. Sometimes those women may not be telling the truth—I have no idea, but I rather suspect that they are. Please can we just think about the vulnerable people and stop being so ultra-sensitive and supposing that we are all getting at everybody. I am absolutely fed up with this debate, and I hope this is the last speech.”
The current policy that is operated in our prisons is:
“A proper assessment of risk is paramount in the management of all individuals subject to custodial and community sentences. The management of individuals who are transgender, particularly in custodial and AP settings, must seek to protect both the welfare and rights of the individual, and the welfare and rights of others in custody around them. These two risks must be considered fully and balanced against each other … Decisions must be informed by all available evidence and intelligence in order to achieve an outcome that balances risks and promotes the safety of all individuals in custody”.
A trans woman with a GRA can be held in the men’s estate, but subject to a risk assessment that includes a judgement about whether somebody is attempting to be transferred into an estate in order to perpetrate further crimes.
A court case last year reaffirmed the balance of rights that the Ministry of Justice operates.
The judge said he “fully understood” that women prisoners “may suffer fear and acute anxiety” if housed with a transgender woman who has male genitalia.
But he added that the rights of transgender women prisoners must also be considered.
“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.”
“However, the policies require a careful, case by case assessment of the risks and of the ways in which the risks should be managed,” he said.
“Properly applied, that assessment has the result that non-transgender prisoners only have contact with transgender prisoners when it is safe for them to do so.”
In the end, the judge accepted there was “a margin of discretion” in balancing the competing rights and managing the risks. However, while the policy itself is ruled to be lawful, the judgement does make it clear that individual decisions are still open to challenge.
It’s worth remembering that this is only one issue of many with our under funded prison service. For example, I recently spoke and asked questions about the safety and care for pregnant women and trans men.