2nd October 2018

By Sarah Armstrong, Director of SCCJR 

Where should transgender prisoners be housed? This question is in the news once again, with some calling for segregated wings for transgender people in prison. The issue is a complicated one entangling concepts of gender identity, risk, security, vulnerability and dignity.

Two opposing themes are emerging in the trans prisoner coverage, one about the danger to, the other about the danger of trans prisoners. In terms of the former, the serious abuse suffered by two transgender women housed in male prisons in England, leading to death in one case, led to a policy review and eventual change. On the latter, more recently, there has been concern raised about abuse and vulnerability of women when co-housed with male to female trans prisoners with sexual convictions (for offences committed while living as male).

What draws these two concerns together – the risks of and the risks to transgender people – is that prison, like gender neutral toilet provision, has now become a battleground for wider debates about trans people’s rights and needs, another context in which debate and division about how this community relates to ‘biological’ males and females plays out. Implicit in questions about where transgender prisoners should be housed are beliefs about who really counts as a man or a woman, as well as about the categorical needs and behaviours of binarized genders.

Scotland’s prison service has taken an unequivocal stance, producing and launching its policy on Gender Identity and Reassignment collaboratively with the Scottish Trans Alliance. The policy states that the ‘social gender in which the person in custody is living should be fully respected regardless of whether or not the person in custody provides any evidence of having a gender recognition certificate’ (or GRC). This is in contrast to prisons in England and Wales which required GRCs – a contentious but official means of establishing a legally recognised gender different from that listed in a birth certificate – from 2011, to alter housing presumptions, with the Ministry of Justice only changing this in late 2016 following the death of the trans prisoner. (Northern Ireland has no specific trans prisoner policy.)

At least in policy, the UK’s prison systems are moving to a position consistent with the spirit as well as letter of equality and human rights laws. This has not been without controversy and a key point of contention is whether some (biological) women have a distinctive vulnerability in prison and whether as a consequence they need categorical protection from other (male bodied trans) women. Empirical research to explore this issue is very much needed to temper and inform the debate currently raging. We lack even basic, reliable figures on the numbers of trans people in prison with a BBC Reality Check pointing out problems with 2017 survey reports of 125 trans prisoners in England, 17 in Scotland and none in Northern Ireland. For example the English trans prisoners were identified by those receiving case conferences over their gender transition and management which excludes those who have not declared a trans gender identity and those on shorter sentences (in too briefly for case management). All the numbers appear to be of male to female trans people.

At SCCJR researchers working on hate crime and on gender based violence have offered relevant insights from different fields. For example, Maureen McBride’s work emphasises the contextual and structural dimensions of hate crime, where relationships and longer histories of underinvestment in communities shapes interactions and vulnerabilities of residents within them.  Oona Brooks Hay and Michele Burman’s recent article, similarly, considers the relational dimensions of domestic abuse through the concept of coercive control. This work collectively shows, I would suggest and without claiming to speak for my colleagues, that identity – whether tied to gender, ethnicity, religion or other basis – matters but careful attention to contexts and relationships is crucial to understanding, anticipating and stopping violence.

This work echoes prisons focused research. We know for example that vulnerability in prison cuts across gender, crime conviction, and sentence length among other qualities – there are vulnerable men as well as women, vulnerable lifers and remand prisoners, and people of all different backgrounds who may be at risk of harm at different times and in different parts of the prison. This is an issue being studied directly in Neil Cornish’s doctoral research which explores how prisoners and prison staff define and make assessments about vulnerability.

Ironically, in one of the largest known studies of transgender prisoners, Valerie Jenness found that trans women prisoners in California preferred to be housed among men despite a risk of sexual assault to avoid other kinds of harm they felt was chronic and pervasive in women’s prisons including bullying, physical assaults, mental health issues, stress and poor staff relationships.

These concerns apply to Scottish prisons as well. HM Chief Inspector of Prisons for Scotland has regularly called out the long hours that women, and many men, spend locked up in cells, a primary strategy in dealing with issues like bullying but also to make up for a relative lack of activities, especially for women in prison. Such a situation exposes the difference between having a progressive policy and actually engaging in practices that nurture the humanity of each and every person in prison, an issue I considered in a recent article on the unanticipated consequences of human rights based penal governance.

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. One of the rare media outlets that is giving voice to them is the Inside Time newspaper, where a new Scottish supplement is reporting on experiences of those north of the border, including perspectives of trans prisoners. We need to hear more from men and women who have experienced prison to understand and improve the ability to ensure the safety and dignity of every person in custody.