Transgender prisoners ‘should be allowed to express their gender’ behind bars

Illustrated rainbow pride flag on a pink background.

The government has concluded a review a review of the treatment of transgender people in the justice system, after a number of shocking cases in which women were sent to men’s prisons.

The government promised a review last year of the way trans people in prisons are dealt with, after two female prisoners died within weeks of each-other while being held in all-male facilities.

A third prisoner, Tara Hudson, was moved to a female facility after a public campaign – and since her release has been vocal in criticising her treatment.

The review, overseen by Peter Dawson of the Prison Reform Trust and Jay Stewart of Gendered Intelligence, was published this week – aimed at reforming National Offender Management Service procedures.

It directs: “People who are living in a gender different to that of their assigned sex at birth should, as a general presumption, be treated by offender management services according to the gender in which they identify.

“Clear, reasonable criteria should be applied from the outset for all transgender people who receive a binary (i.e. either a male or female) service from NOMS, where it is required.

“This process should be free from bias, follow a clear, recorded process and be undertaken by staff who have a sound basic awareness of transgender identity, with
access to specialist advice.

“The transgender person must be fully involved with face-to-face assessment and the giving of reasons both orally and in writing.”

However, the document also states that trans people can be sent to prisons if there is a ‘lack of evidence’ of their gender identity.

It states: “There will be circumstances when a transgender person’s location cannot be straightforwardly reconciled with their views.

“This may be due to a lack of evidence (or the presence of counter evidence) relating to the gender in which they identify and/or concerns raised via an assessment of all known risks, indicating they cannot be safely managed in a prison that does match their self-identified gender. Guidance on how NOMS staff weigh evidence and risk should accompany any new instruction.

“Decisions on the allocation of transgender people to binary services, especially custody, must include the possibility of a review and rapid remedy if it appears that the initial allocation might have an unforeseen and detrimental impact on the person’s mental health or wellbeing, their social integration and access to services, or an impact on safety to themselves or the safety of others.”

However, it directs: “Regardless of where prisoners are held, they should be respected in the gender in which they identify, being provided with those items that enable their gender expression.”

The MoJ said: “It is apparent that the treatment of transgender people in courts, probation and prison services has not kept pace with the development of a more general understanding of the issues surrounding gender in society.”

“Policy in this area needs to evolve and take as its starting presumption a wish to respect someone in the gender in which they identify, once in the care of the criminal justice system.

“Allowing transgender offenders to experience the system in the gender in which they identify will, in the great majority of cases, represent the most humane and safest way to act.”

“We believe it will also assist successful rehabilitation. In the minority of cases where that is not possible, the reasons for departing from this starting presumption must be clear, explicit and made known to the person they affect, especially when it involves assigning someone to a male or female prison.”