Comment: Prison Service must jail transgender criminals safely

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A story published in the Bristol Evening Post yesterday, of how a trans woman who had been dealing drugs avoided jail because this would interfere with her transition, is bad news for the rule of law, and bad news for the trans community everywhere.

Bad for the law because it suggests that sometimes it is not possible for justice to be handed out evenhandedly, and very bad news for transgender persons, because cases like this go a long way to confirming in the collective consciousness of some sections of the public, that being trans entitles one to special privileges. As if!

Incidents of this nature are not entirely uncommon – and have been hitting the headlines at the rate of one every two or three months in recent years. While they may look like an easy ‘Get out of Jail’ option for the trans criminal, they actually reflect a long-term abdication of responsibility by the Prison Service who first started looking into the vexed issue of guidelines for trans prisoners around fifteen years ago – and are still looking.

‘Leaked draft guidelines’ made for two more fine stories regarding supposed trans privilege in the Daily Star and the Sun late last year and early this year.

The official Ministry of Justice position was that the document in question did not necessarily “reflect the current position of NOMS (the National Offender Management Service) or MOJ (the Ministry of Justice) or any eventual policy on the care and management of transsexual prisoners”.

Further: “Prison Service guidelines for transgender prisoners are currently being developed to encompass policy from the Equality Act 2010 which came into force in October”, and these “will be published in due course”.

We are still waiting.

The situation is not helped by the fact that human rights rulings, the Gender Recognition Act and more recently the Equality Act mean that the law governing such situations keeps changing. Factor in, too, that not only do legal rights shift, but so too do the practicalities of prisoner surveillance, according to whether an individual is pre- or post-op, with or without a gender recognition certificate – and the urge towards bureaucratic inaction becomes overwhelming.

The result is a mess – but one which is continually teetering on the edge of catastrophe.

Leave a trans prisoner with the general prison population and they will be at seriously increased risk of abuse, violence, rape and worse. Segregate them – which is often the only practical alternative – and individuals end up incarcerated in virtual solitary for the duration of their time in prison.

Hence the outcry late last year, when trans woman Nina Kanagasingham, accused of murdering Sonia Burgess, was remanded to Belmarsh – an all-male prison – for some three months, pending her next court appearance.

Hard cases make bad law. It is wrong for trans individuals to be able to use their transition as a cause for leniency: equally wrong for an ‘ordinary’ punishment – a simple spell in prison – to be turned into a living hell for someone just because they are trans.

With somewhere between 20 and 30 trans individuals in UK prisons at any one time, it’s a problem that both needs addressing and yet, at the same time, ought not to require a great deal of resource to fix. The fact that it hasn’t represents a continuing source of grief for the trans community – both those who transgress and should be sent to prison, and those who suffer the backlash from these difficult decisions.

If anyone at the Ministry of Justice happens to be listening: please sort this out. Fifteen years is way long enough!