Transgender Juveniles and the Binary Custodial Divide

AuthorNigel Stone
Published date01 August 2016
Date01 August 2016
Subject MatterLegal Commentary
Youth Justice
2016, Vol. 16(2) 181 –190
© The Author(s) 2016
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DOI: 10.1177/1473225416660209
Legal Commentary
Transgender Juveniles and the
Binary Custodial Divide
Nigel Stone
Custodial populations are commonly categorised and segregated according to biological
sex. In England and Wales (E&W), the Prison Rules 1999 (SI 1999 No. 728) specify (Rule
12(1)) that ‘women prisoners shall normally be kept separate from male prisoners’.
Invariably, women are held in separate establishments. Although more flexible use of the
prison estate would offer some prospect of locating incarcerated women closer to their home
areas, recent experience of both sexes being located within the same establishment (though
strictly segregated) has suggested mixed success.1 That Rule is not replicated in the statutory
Rules pertaining to two of the three kinds of establishment housing young offenders. The
Young Offender Institution Rules 2000 (SI 2000 No. 3371) and the Secure Training Centre
Rules 1998 (SI 1998 No. 472) each specify that trainees ‘may be classified, in accordance
with any direction of the Secretary of State, taking into account their ages, characters and
circumstances’.2 Although juveniles have not featured prominently in recent developments
in provision for transgendered people, imprisoned or otherwise, this Commentary seeks to
take stock of this dimension of custodial justice, having regard to the particular vulnerability
of young people who are not readily categorised in line with their biological sex.3
Legislative, Judicial and Policy Developments in England and
Gender Recognition Act 2004
Developing appreciation that an individual’s gender is not intrinsically immutable,
notwithstanding their identified sex at birth, had led belatedly to the passage of the
Gender Recognition Act (GRA) 2004, prompted by critical judgements of the European
Court of Human Rights,4 enabling transsexual persons to secure legal recognition of
Corresponding author:
Nigel Stone, School of Psychology, University of East Anglia, Elizabeth Fry Building, Norwich, NR4 7TJ, UK.
660209YJJ0010.1177/1473225416660209Youth JusticeStone

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