R FDJ v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Holroyde,Mr Justice Swift |
| Judgment Date | 02 July 2021 |
| Neutral Citation | [2021] EWHC 1746 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4198/2019 |
[2021] EWHC 1746 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Holroyde
Mr Justice Swift
Case No: CO/4198/2019
Karon Monaghan QC, Jessica Jones and Julian Norman (instructed by Birnberg Peirce Solicitors) for the Claimant
Sarah Hannett QC, Alex Ustych and Nathan Roberts (instructed by Government Legal Department) for the Defendant
Stuart Withers (instructed by Kesar & Co Solicitors) for the Intervener (by written evidence only)
Hearing dates: 2 – 3 March 2021
Approved Judgment
The Claimant in this case challenges the lawfulness of the Defendant's policies relating to the care and management within the prison estate of persons who identify as the opposite gender from that which was assigned to them at birth. In particular, she challenges the policy in relation to the allocation to a women's prison of transgender women who have been convicted of sexual or violent offences against women.
Introduction:
The Claimant (who has been granted anonymity in these proceedings) served a sentence of imprisonment between October 2016 and June 2020. She asserts that in August 2017, whilst held at HMP Bronzefield, she was sexually assaulted by “J”, a transgender woman prisoner with a gender recognition certificate (who has also been granted anonymity). The Defendant makes no admission as to the occurrence or circumstances of that alleged assault.
It is unnecessary to say more about the Claimant's personal history, which has little or no bearing on the issues which this court must decide.
The Claimant says in her witness statement that she does not object to transgender women who are not violent, and are not sexual predators, being allocated to a women's prison. But, she says, she and other women are scared about transgender prisoners who have committed sexual offences against women being in the same prison as them. She says that J had been convicted of serious sexual offences against women, but was at the material time accommodated within the general population of the prison. The Claimant describes J as being of large build and masculine appearance.
A statement from another woman prisoner raises similar concerns.
Transgender prisoners:
As Ms Monaghan QC on behalf of the Claimant pointed out, the relevant legislation (to which I will refer later in this judgment) tends to use the words “sex” and “gender” interchangeably, whereas in current use the two words have distinct meanings. For the purposes of this judgment, and without entering into any wider debate as to terminology, I shall give those words the meanings explained by Jeremy Baker J in R (Elan-Cane) v Secretary of State for the Home Department [2018] EWHC 1530 (Admin) at [96]:
“Although at one time the terms ‘sex’ and ‘gender’ were used interchangeably (and confusingly still are on occasions), due to an increased understanding of the importance of psychological factors (albeit these may be due to differences in the brain's anatomy), sex is now more properly understood to refer to an individual's physical characteristics, including chromosomal, gonadal and genital features, whereas gender is used to refer to the individual's self-perception.”
I shall use the word “transgender” to refer to a person who identifies as the opposite gender from that assigned at birth (whether or not they have undergone any alteration of physical characteristics). Transgender persons may obtain formal legal recognition of their preferred gender pursuant to the provisions of the Gender Recognition Act 2004 and may apply for a gender recognition certificate (a “GRC”). It is unnecessary for present purposes to set out the criteria and evidential requirements for the issue of a GRC, which are contained in sections 1–3 of the Gender Recognition Act 2004. It is however important to note that by section 9 of that Act –
“(1) Where a full gender recognition certificate is issued to a person, the person's gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person's sex becomes that of a man and, if it is the female gender, the person's sex becomes that of a woman).
(2) Subsection (1) does not affect things done, or events occurring, before the certificate is issued; but it does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is issued (as well as those passed or made afterwards).
(3) Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.”
The female prison estate, like the male, includes both public prisons run by Her Majesty's Prison and Probation Service (“HMPPS”), of which HMP Downview is an example; and privately-managed prisons run by contractors, such as HMP Bronzefield, which is operated by the Interested Party. The population of the female estate constitutes less than 5% of the total adult prison population in England and Wales. For present purposes, it is unnecessary to consider wider issues about the circumstances of those who form the population of female prisons. It is however relevant to note that it is an important part of the Claimant's case that many in the female prison estate, including her, have been the victims of sexual abuse and/or domestic violence during their lives. The Defendant does not dispute that proposition, and accepts that women prisoners in general are a vulnerable cohort and that past experience of sexual abuse or rape is prevalent.
There is no statutory requirement that male and female prisoners be accommodated in different establishments, but rule 12(1) of the Prison Rules 1999 provides that –
“Women prisoners shall normally be kept separate from male prisoners.”
The population of a female prison may include persons who were born female and identify as such (referred to in this judgment as “women”); persons who were born male but identify as female, whether or not they have undergone any alteration of physical characteristics (“transgender women”); and transgender women who have obtained a GRC (“transgender women with a GRC”). It is important to the Claimant's case to note that both a transgender woman and a transgender woman with a GRC may retain male genitalia.
In March 2019, a special unit for high-risk transgender prisoners was created in E Wing at HMP Downview (hereafter, “E Wing”). The female estate does not include any other accommodation specifically for transgender women, but transgender women in the general prison population may be subject to different accommodation arrangements or behavioural compacts.
The total number of known transgender persons in the prison estate is small, though there may well be others who prefer not to declare their identification as the opposite gender. In the course of this hearing, the obtaining of clear evidence as to the relevant statistics proved elusive, not least because the data collected by the Defendant do not include transgender prisoners who have obtained a GRC. Moreover, the data provided to the court lacked clarity, and left many questions unanswered: for example, it was unclear whether references to prisoners with convictions for sexual offences related only to prisoners currently serving a sentence for that type of offence, or also included prisoners who had in the past been convicted of such offences. Nor was it clear whether previous sexual offences by a transgender prisoner were committed before or after the person concerned expressed a wish to live in the opposite gender.
What can be said, however, is that data collected across the prison estate in March/April 2019 recorded the following:
i) There were 163 transgender prisoners, of whom 81 had been convicted of one or more sexual offences.
ii) 129 of those prisoners were allocated to the male estate, 34 to the female estate. Of the 129 in the male estate, 74 had been convicted of one or more sexual offences.
iii) Although no records are kept, the number of transgender prisoners with a GRC is thought to be very low: a single-figure total across the estate as a whole.
Further data showed:
i) Between 2016 and 2019, a total of 97 sexual assaults were recorded in women's prisons. Of these, it seems that 7 were committed by transgender prisoners without a GRC. It is not known whether any were committed by transgender women with a GRC.
ii) In May 2020 the relevant Minister, in reply to a Parliamentary written question, provided the following information about involvement in sexual assaults of persons who were born, and remained in law, male, but self-identified as female: in 2019, 11 such persons were recorded as the victims of sexual assaults; one was recorded as the assailant; and one was recorded as involved in an incident in which there was no clear aggressor or victim. All these incidents were recorded as having taken place in the male estate. I take that to mean that in 2019, no sexual assault by a transgender woman without a GRC was recorded in the female estate.
iii) In 2020, prisoners in the general population who were serving sentences for sexual offences constituted less than 20% of the male prison population and less than 5% of the female population.
iv) As at March 2019, there were 34 transgender women without GRCs who were allocated to the general population in the women's estate.
v) As at March 2021, one...
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