The government’s policy of housing transgender women in female jails is lawful, the High Court ruled on Friday.
A female prisoner, known only as FDJ, challenged the Ministry of Justice over elements of the policy earlier this year, claiming she had been sexually assaulted by a trans prisoner in 2017 who had been convicted for serious sexual offences.
In her challenge, FDJ contested a policy around the housing of trans women who had been convicted of violent and sexual offenses against women in women’s prisons.
They claimed that trans inmates were five times as likely to carry out sexual attacks in women’s prisons, referring to a statistic provided in response to a parliamentary question.
They argued that the existing policy discriminated against cisgender women, as the same risk did not exist when trans men are placed in men’s prisons.
In response, the Ministry of Justice argued that the policy pursued the legitimate aim of “facilitating the rights of transgender people to live in and as their acquired gender”, adding that the policy protected trans women’s mental and physical health.
Throughout the trial, the court heard that as of 2019 there were 34 trans women in women’s prisons in England and Wales, The court also heard that there had been 97 sexual assaults recorded in women’s prisons between 2016 and 2019.
Of the sexual assaults, seven appeared to be committed by trans prisoners without a GRC (gender recognition certificate). While it is unknown if any were committed by trans prisoners without a GRC, the number of trans prisoners without a GRC across all prisons is thought to be in the single digits.
On Friday, two High Court judges rejected FDJ’s claim and found that the Ministry’s policies on housing trans women in women’s prisons were lawful.
Lord Justice Holroyde said: “It is not possible to argue that the defendant should have excluded from women’s prisons all transgender women.
“To do so would be to ignore, impermissibly, the rights of transgender women to live in their chosen gender; and it is not the course which the claimant herself says the defendant should have taken.”
He added: “I can accept, at any rate for present purposes, that 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.
But he said that the statistical claim that FDJ’s lawyers had used was a “misuse of the statistics”, which he said were so few in number and lacking in detail that they could not be used to draw general conclusions.
In his ruling he emphasised that a trans woman’s offending history was already taken into account under the existing policies, to assess and manage all risks.
He said: “The policies require a careful, case-by-case assessment of the risks and of the ways in which the risks should be managed.”
“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 an exceptional case,” he added, “a high-risk transgender woman, even with a GRC, can be transferred to the male estate because of the higher level of security which is there available.”
The court also heard from expert panels throughout the trial, which are involved in the process of allocating transgender prisoners. These panels said told the court that they were “expressly required” to consider the trans woman’s offending history, her anatomy, her sexual behavior, and her past relationships.
Lord Justice Holroyde said that these panels could, in his view, “be expected to detect any case of a male prisoner, who, for sinister reasons, is merely pretending to wish to live in the female gender.”
The judge also said that he took note of the vulnerability of many women in prison.
“I readily accept that a substantial proportion of women prisoners have been the victims of sexual assaults and/or domestic violence.”
He added that he understood that some women prisoners “may suffer fear and acute anxiety if required to share prison accommodation and facilities with a transgender woman who has male genitalia and that their fear and anxiety may be increased if that transgender woman has been convicted of sexual or violent offences against women.”
FDJ said that she was disappointed with the ruling, but added that she was pleased that the court had recognised that many women in prison have been victims of domestic and sexual assault, and recognised women in prison as a vulnerable group.
“By bringing this challenge,” she said, “I did not seek to prevent trans women in prison from living in dignity, or to exclude all transwomen from women’s prisons.
“However, I feel that trans women who have a history of violence and sexual offending against women should not be in a situation where they can put our safety at risk.”
A Ministry of Justice spokesperson said: “We are pleased that the court agrees that the way we manage transgender offenders strikes the right balance between protecting their legal rights and ensuring the safety of all prisoners.