Transsexuals in Prison

The High Court has become involved in the case of a transsexual prisoner who wishes to be moved from Strangeways to the female estate. The prisoner dearly wants to have her penis removed, but the hospital concerned says it will not operate until she has lived as a woman inside a female prison.  The Justice Secretary refused to transfer her there, but the court has now declared that refusal unlawful.  (R (AB) v The Secretary of State for Justice and the Governor of HMP Manchester [2009] EWHC 2220 Admin)

In HMP Manchester, AB is held on the vulnerable prisoners unit, because of the sexual nature of her index offence. She has a formal written compact with the Prison Service, which determines such things as the clothes and makeup she can wear and the circumstances in which she can wear them.  Effectively, she can only dress in blouses and skirts when she is alone in her cell, and because she can never associate with others there, the court found this restriction exceeded those that would apply if AB were in a female prison.

The Secretary of State has attempted to justify his stance in at least two ways. At first, he said that the risk AB posed could not be properly managed in a female prison, but less than a fortnight before the case came to court, he changed tack.  He pointed to a draft Prison Service Order, PSO 3300: Draft Guidelines on the Management, Treatment and Care of Prisoners who have or have had Gender Dysphoria, which is still awaiting final approval. That says: “Decisions about the location of prisoners who live in a role other than that assigned to them at birth who have not yet undergone gender confirmation surgery, whether or not they have commenced hormone treatment, must be reached only in the light of all the circumstances of their particular case and following a full multi-disciplinary risk assessment.”

The draft PSO purports to confer a wide discretion upon prison authorities, and, invoking that discretion, the Secretary of State said:

• AB’s offending history was serious.
• If she went to a female prison, it would be harder to make and monitorinterventions aimed at reducing her risk.
• Even if she were transferred, surgery was an entirely clinical issue and there was therefore no guarantee that it would proceed.
• If, having been transferred to a female prison, AB did not have her penis removed,  it would be even harder to move her back to a male prison.
• There were concerns about how the female population might respond to her, both generally and because of her index offence.  She might never be able to integrate into the general population, yet it would be harmful for her to remain forever in segregation.
• The additional cost of segregating AB within the female estate would be considerable –  possibly as much as £85,000.

Accordingly, the Secretary of State refused to transfer AB to a female prison. He argued she should be able to qualify for surgery while remaining in a male prison.

The High Court ruled that this refusal effectively barred AB from qualifying for surgery and, taken with the hospital’s own stipulation, would prevent her progressing to full gender reassignment. This in turn infringed her private life and so breached Article 8 of the European Convention on Human Rights. The refusal was also irrational under the common law.  AB had been denied rights that even imprisonment cannot remove. Too little attention had been paid to the effects of keeping her in a men’s prison and to the fact that she would have to be segregated from other inmates, and the financial implications had been had been misjudged.

The decision was hailed as a significant advance for transsexuals, with the judge himself declaring that their autonomy and dignity were now unassailable.  Whilst that might be true, it is certainly not the full story.

AB was able to gain her Gender Recognition Certificate by demonstrating that she had lived as a woman for at least two years.  She did that in prison, of course.  Before this case, the effect of such a certificate had seemed clear: ‘the person’s gender becomes for all purposes the acquired gender’, section 9 of the Act says, and the explanatory notes add, ‘an applicant who was born a male would, in law, become a woman’.  That would cover this case perfectly, if only for all purposes meant what it seems to mean.

It is perfectly true that the judge in this case found for AB, but that was simply because the Secretary of State’s rationale had been defective.  The judge did not find that she was a woman and therefore entitled to serve her sentence in a female prison.  Such a finding would have been sufficient in itself to give AB victory, for as far as women are concerned, the Secretary of State accepted that there are only two circumstances in which they might be detained with men: as a purely temporary measure or where the requirement for security is so high that it cannot be met elsewhere.  Neither circumstance obtains here.  The judge said a ‘biologically female’ offender who presented the same risk as AB would not be held in a male prison, and that her risk could, in any event, be successfully managed in a female prison. The problem, it seems, was AB’s penis.

The judge acknowledged that the Gender Recognition Act seemed to require that AB be regarded as a woman.  He added, however, that ‘the precise scope of the provision is unclear’ and, without saying where it came from, ruled that there was in fact an exception to section 9: where, although she is legally a woman, a prisoner still possesses male genitals, she might in effect be treated as a man if her ‘pre-operative physical state’ is of ‘specific relevance’ to the functioning of the prison. This is where the draft PSO would come in.  It seems we must read the apparently all-embracing injunction in the Act as ‘for all purposes but one’.

In this case, the stipulation made by the hospital AB hoped would treat her was perhaps surprising: there is a certificate to prove she has lived as a woman and has done so in prison (albeit a male prison).  That stipulation was, however, supported by a wealth of expert opinion, and it is therefore unimpeachable.  The judge’s reasoning is less so.

The Secretary of State did not argue that AB could not have gender reassignment surgery, and it was accepted that the only way she could qualify for it was in a female prison.  The exception discovered by the judge, however, is a novel one. Hitherto, for all purposes was thought to mean just that and a Gender Recognition Certificate would have been assumed to apply, even in Her Majesty’s Prisons. That the judge felt able to contradict that assumption – and the statute that gives rise to it - is surprising; that a PSO might shortly do the same is even more so.

Dr David Hewitt is a partner in the
healthcare team at law firm Weightmans LLP.
David.hewitt@weightmans.com