Transgender prisoners face serious difficulties in jail and are often driven to crisis point: there have been four deaths in custody of transgender women in prison between November 2015 and January 2017. Transgender prisoners are among the most vulnerable, with clear risks of suicide and self-harm and commonly facing serious bullying and harassment.
A recent report that a transgender woman convicted of the rape of two girls has been moved from a male high security prison to a female prison highlights the difficult decisions faced by the prison service. As emphasised by Nigel Newcomen CBE, the Prisons and Probation Ombudsman ('PPO'), "managing transgender prisoners safely and fairly poses challenges for prison staff in the "hyper-gendered" world of prisons, but law and policy are unequivocal that this is what is required."
A review was completed by the Ministry of Justice in 2016, leading to a revised and much more comprehensive policy on transgender prisoners. It is designed to cover the issues faced by transgender prisoners at all stages of their imprisonment and whatever stage of transitioning they are at. The new policy also explicitly covers prisoners who are intersex or who identify as non-binary or gender fluid, a group of people facing clear problems as a result of having to live in the binary prison system strictly divided between male and female.
One key issue is the location of a transgender prisoner: the current position is that this will generally be decided according to their legally recognised gender, but the issue should be proactively evaluated at the earliest stage based on an individual assessment of their needs, and the possibility of residing in the estate of their acquired but not legally recognised gender should be given appropriate consideration. This is a positive shift in thinking, but it still requires local prison transgender review boards to understand the often highly complex issues facing transgender prisoners. It also requires transgender prisoners who do not have a Gender Recognition Certificate ('GRC'), which legally changes their gender, to go through the often traumatic and taxing process of providing evidence of their acquired gender to the prison transgender review board - and to compound this will usually be during their difficult early days in custody.
One of the most difficult areas is transgender prisoners who have do not have a GRC, as well as those who are still transitioning. Obtaining a GRC is a lengthy and often difficult process, particularly for individuals with chaotic lives. It is particularly hard to prove that you meet the necessary criteria if you are living in a prison not for the gender you identify with. Some transgender prisoners, for various reasons, may not wish to get one at all. It can also be difficult to get the highly specialist treatment, care and support required to transition in custody.
Civil Liberties Lawers, London
The Civil Liberties team at Saunders Law are experienced in advising and representing transgender prisoners and other prisons facing difficulties due to their gender. If you or a loved one are currently experiencing or have previously experienced difficulties, contact us today to discuss whether we may be able to help. If you are financially eligible you may be able to get legal aid to pay for the costs.