Prison accommodation for transgender people

Transgender people (1) are those whose gender identity and/or gender expression differs from their birth sex. This includes transsexuals, cross-dressing people and others defined as gender-variant. Transgender people may or may not choose to undergo gender reassignment hormonally and/or surgically. Gender reassignment is usually a complex process that takes place over a long period of time and has four typical stages: psychiatric assessment, hormonal treatment, a period of living as a member of the opposite sex subject to professional supervision therapy and, in suitable circumstances, surgery.

Transgender people may come into contact with the criminal justice system as suspects or offenders. As a suspect or offender, a transgender man or woman should normally be in the same position as anyone else who commits, or is suspected of committing, a crime. However, if a trans person is sent to prison, the Prison Service is likely to be faced with several legal and practical issues, of most immediate significance is likely to be what accommodation is appropriate. If there is no prison accommodation specifically set aside for trans offenders or those on remand, the question arises whether they have to be placed in a male or female prison along with other prisoners, or alternatively, in isolation. The way in which the service addresses this question must comply with the equality duties, human rights obligations, and of course health and safety obligations.

1. Legal requirements

1.1 Equality Act

Under certain provisions of the Equality Act 2010 (“EA”) which came into force in October 2010 to replace the previous race, disability and gender equality duties, a person will be protected against unlawful discrimination or harassment if they intend to undergo, are currently undergoing or have already undergone a process to reassign their sex by changing physiological or other characteristics of their sex. All public authorities including the Prison Service are required to have due regard to the need to eliminate discrimination and harassment of transgender people because of the protected characteristic in the fields of (amongst others) facilities and services.

With regard to accommodation in prison, it will be unlawful discrimination if a transgender suspect or offender is accommodated less favourably than non-transgender prisoners just because of their intention to undergo, or their actual, gender reassignment. This means that it will be necessary to treat a prisoner who decides to live permanently in their non-birth gender according to their chosen gender unless there is a compelling reason for doing otherwise. Only the accommodation of a transgender woman in a prison along with women and a transgender man in a prison along with men will allow them to live according to their chosen gender, equally to biological men or women.

Any contrary approach, including the segregation of the transgender prisoner from other inmates, would be unlawful discrimination unless it is necessary, for example, on personal safety grounds (which will be considered in more detail below). What matters is the reason for the less favourable treatment. (2)

Besides the duty to eliminate discrimination, the EA requires the Prison Service to take those steps which are reasonably practicable (given the constraints of the available accommodation) to protect the transgender prisoner against unwanted conduct which has the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

In addition to that, the EA may also require the Prison Service to prevent any less favourable treatment or harassment of trans people because of any disability if, for example, the individual has been diagnosed as being affected to a substantial degree by gender identity disorder (“gender dysphoria”). Gender identity disorder is the formal diagnosis used by psychologists and physicians to describe a male or female who feels a strong identification with the opposite sex and experiences clinically significant and long-lasting distress or impairment on their ability to carry out normal day-to-day activities because of their actual sex. (3)

1.2 Gender Recognition Act

Under the Gender Recognition Act 2004 (“GRA”), transgender people can apply for a gender-recognition certificate (“GRC”) on the basis that they have lived fully for the two past years in their non-birth gender and intend to live permanently in this gender. If an application to the Gender Recognition Panel is successful, the transgender person's gender becomes for all purposes (except in respect of things done or events that have taken place before it was issued) the acquired gender, whether or not the transgender person has had surgery. It also entitles the transgender person to special protection against information about their transgender status or history being passed on to others.

Consequently, transgender prisoners who have obtained legal recognition in their acquired gender prior to the custodial sentence have the right to be treated and placed in the same way as any other prisoner of their acquired gender. Exceptional circumstances as possible justification for any less favourable treatment will, from the date of issue, no longer apply. (4)

1.3 Human Rights Act

The Human Rights Act 1998 (“HRA”) places obligations on public authorities including the Prison Service to take proactive steps to protect and respect fundamental values of fairness, respect, equality, dignity and autonomy for all their service users. (5) This includes the duty to eliminate discrimination and harassment in the enjoyment of rights on the ground of being transgender, and to promote equality of opportunity for all transgender people. By considering in advance how to secure the transgender prisoner's human rights, the Prison Service has to ensure that their policies and practices fully consider and respond to the needs of trans people and that they are treated fairly and with the same respect and dignity as everyone else. (6)

With regard to appropriate accommodation in prison, trans people have to be placed in an establishment which is suitable for their particular gender identity. Unless barred by safety reasons, this would reinforce the obligation arising from the EA to provide accommodation in a prison along with people from their chosen gender, with appropriate health and social care. To do otherwise could be legally problematic, and one commentator has suggested that solitary confinement, for example, could well be considered as double punishment and an infringement of a prisoner’s human rights if it could not be justified on other grounds. (7)

1.4 Health and Safety at Work Act

The Health and Safety at Work Act 1974 ("HSA") requires employers to conduct themselves in such a way as to ensure, so far as is reasonably practicable, that those within the working environment, either employed or members of the public, are not exposed to risks to their health or safety. This means the Prison Service has to ensure not only the safety of its officers but also the prisoners in their care.

From this it follows that the Prison Service needs to consider the need of any transgender prisoner to feel safe in their prison accommodation. Management would have a duty to implement preventive and protective measures to eliminate, reduce or control any health and safety risks which are related to the expression of their gender identity. Failure to meet this obligation may give rise to health and safety liabilities if, for example, insufficient measures are taken to protect transgender prisoners against breaches of their basic rights to privacy and dignity by other prison detainees. Therefore, prison management has to identify the risks by doing an assessment to examine carefully the possible health and safety hazards in the prison accommodation environment and the actions that will be need to be taken to minimise these. (8)  This should include the following considerations.

If a transgender person is detained along with people from their birth gender, it may be almost impossible for them to continue or to commence living in their chosen gender role. (9) If they do attempt to and, for example, a transgender male is dressed as a woman, their transgender status will always be known to both prison staff and other inmates. That, in itself, makes them vulnerable to bullying, transphobic verbal abuse, threatening behaviour, sexual assault, physical violence or damage to property, on grounds of irrational fear of, and/or hostility towards, people who are transgender or who otherwise transgress traditional gender norms (transphobic hate crimes). (10)

Many people have a problem with the mere existence of human beings whose outer expression of their inner gender identity is not the same as their gender determined at birth (transphobia). (11) Apart from emotional distress based on the feeling of being accommodated in the "wrong” prison, this could expose an individual to serious physical injury and significant emotional distress, depression, anxiety, panic attacks, insomnia, isolation and suicidal thoughts. (12) Consideration may also have to be given to the possibility that transphobia may impact on the perception of safety for those who are associated with the transgender person. (13)

Furthermore, if transgender prisoners have started hormone therapy prior to any surgical procedure and the prison environment makes it virtually impossible to continue living in the chosen gender role, the therapy may well be stopped, at least in the short term. (14)  The continuance of hormone therapy is often relied upon by medical professionals in assessing whether a patient passes what is known as the “real life test”. (15)  Surgical procedures will rarely be considered by clinicians unless the real life test has been passed and the individual has lived in their chosen gender for at least 12 months. (16) It follows that imprisonment could certainly delay any plans for such treatment, and if a long sentence has been imposed, it may well spell the end of such hope on the prisoner’s part. (17)  This could lead to significant physical and psychiatric difficulties for the transgender prisoner. Thus, safety risks can be directly connected with health risks.

Alternatively, the transgender person could be placed in a prison along with people from their chosen non-birth gender. Although, this environment would allow them to continue the real life test, the safety risk of transphobic hate crimes still exists. Even though a trans person has completed gender reassignment prior to the custodial sentence and the personal details relating to their status are kept confidential, in many cases their status will be visible and could prompt a transphobic reaction. For example, physical changes brought about by testosterone are normally irreversible. (18) If the transgender person’s physical attributes still differ from their chosen gender, a transgender man could be particularly vulnerable to rape and sexual assault by other male prisoners. By contrast, female inmates are potentially at risk of rape and sexual assault by a transgender woman who still has male genitalia. Besides this, the presence of a person who is obviously of the opposite sex could cause significant emotional distress, anxiety, panic attacks, and insomnia for other prisoners while sharing facilities or premises.

In order to eliminate health or safety risks which are directly related to cohabitation in prison, a trans person could be segregated from other inmates. However, as already noted above, this in itself raises legal issues. One also needs to consider that solitary confinement for a longer period of time could cause significant psychological problems such as delusions, claustrophobia, depression, panic attacks, self harming and other mental health problems. (19)

Accordingly, the decision about the proper accommodation of transgender prisoners with regard to health and safety requirements depends on what is reasonable in the light of all the circumstances of their particular case and following a full risk assessment. This appears to confer a usefully wide discretion upon prison authorities, but nevertheless one that still needs to be exercised with the greatest of care.

1.5 Conclusion

The key legal points to consider are:

1.5.1 Wherever possible transgender suspects or offenders have to be placed in a prison along with people from their chosen non-birth gender, whether or not they have changed their physical sex appearance or received a gender-recognition certificate.

1.5.2 This approach may only be varied under special circumstances where, for example, health and safety risks necessitate accommodation of a trans inmate along with prisoners from their birth gender or in isolation.

2. Practical guidance

To achieve accommodation of transgender suspects or offenders which complies with the legal requirements, the Prison Service will need to show flexibility and understanding with regard to the special needs of a trans people and how they effect the prison environment. This should include primarily the following issues: (20)

• In many cases, especially in those where a long-term custodial sentence is received, a successful reintegration of transgender prisoners into society is only possible if they are able to return to society successfully into their new gender role. Therefore, the Prison Service should place transgender prisoners in a facility which allows them to live according to their chosen gender, including the opportunity to continue or to start the gender reassignment process. It should be allowed that transgender prisoners continue the real life test by wearing appropriate clothes, wigs or makeup, and that they receive all the medical treatment that they may require in relation to the gender reassignment, such as hormone treatments or surgeries. It also includes the right to consult appropriate gender specialists who may assist them during their reassignment.
• The transgender prisoner’s right to privacy should be maintained at all times. Disclosing transgender status to other prisoners or staff without cause and without the prisoner’s consent should be avoided if possible. This also applies to monitoring facilities which can identify the transgender person’s status. Particular consideration needs to be given to privacy, whether for showering or bathing, medical care or other personal needs. If it is not possible to accommodate the transgender person in a single cell (without complete isolation), sufficient privacy may be ensured by the use of curtains or temporary partitions. Furthermore, the transgender prisoner should be searched by an officer of their choice or, at least, of their acquired gender.
• The Prison Service should secure the personal safety of a transgender prisoner, especially against transphobic hate crimes. This should include treating any harassment by prison staff or other prisoners as sufficient reason for disciplinary action. The isolation of the transgender prisoner in circumstances where full supervision cannot be provided should be considered only as a temporary measure or where the requirement for security is so high that it cannot be met elsewhere (“administrative segregation”).
• In general, it may be useful to consider providing additional training for prison staff, to ensure that they are fully aware of their obligations and duties of care. It may also be helpful for staff to be aware of issues involved in gender reassignment so that they have a better understanding of any issues that may arise, and allow them to deal with problems sensitively and compassionately. Furthermore, there needs to be a code of practice or rigorously applied guidelines which are both consistent and available across the prison system, and freely given to every transgender prisoner.

In response to the problems which transgender prisoners have to face in ordinary prisons, in March 2010 Italy opened the world's first prison exclusively for transgender inmates. According to reports , the facility, a former medium-security prison for women near Florence, is expected to house around thirty transgender detainees and is regarded as a dedicated space providing the psychological support transgender prisoners need. Inmates have their own cell and are given a personal development plan. Furthermore, the prison staff have to undertake special training in how to treat transgender prisoners. According to the prison’s management, it is “a question of dignity”. While this approach seems ideal, it is debatable whether the resource exists to replicate such a facility in the UK.

Notes

(1) See Equality and Human Rights Commission, Public Sector Guidance (Gender Equality Duty), 2010. Available at http://www.equalityhumanrights.com/uploaded_files/PSD/psd_trans_guidance.pdf
(2) See the Equality Act 2010 - Explanatory Notes of the Government Equality Office and others available at http://www.legislation.gov.uk/ukpga/2010/15/pdfs/ukpgaen_20100015_en.pdf; Newman, D, Gender reassignment- new rights for trans people, Equal Opportunities Review 2010.
(3) See the medical definition at http://medical-dictionary.thefreedictionary.com/gender+identity+disorder
(4) See Tribunals Service, Gender Recognition Panel, Explanatory leaflet, 2006 (available at http://www.grp.gov.uk/documents/explanatory_leaflet_05.pdf); different view in AB, R (on the application of) v Secretary of State for Justice & Anor [2009] EWHC 2220.
(5) See Equality and Human Rights Commission, Public Sector Guidance (Gender Equality Duty), 2010. Available at http://www.equalityhumanrights.com/uploaded_files/PSD/psd_trans_guidance.pdf
(6) See Equality and Human Rights Commission, Public Sector Guidance (Gender Equality Duty), 2010, supra.
(7) See Equality and Human Rights Commission, Public Sector Guidance (Gender Equality Duty), 2010, supra.
(8) See also Prison Service Order Nr. 3801, Health and Safety Policy Statement, 2007.
(9) Stephens, P and Whittle, S, A Pilot Study of Provision For Transsexual and Transgender People in The Criminal Justice System, and the Information Needs of their Probation Officers, 2001.
(10) Stephens, P and Whittle, S, supra.
(11) Turner, L, and Whittle, S, A Research Project of Transphobic Hate Crime in the European Union, 2009.
(12) Stephens, P and Whittle, S, A Pilot Study of Provision For Transsexual and Transgender People in The Criminal Justice System, and the Information Needs of their Probation Officers, 2001.
(13) Turner, L, and Whittle, S, A Research Project of Transphobic Hate Crime in the European Union, 2009.
(14) Stephens, P and Whittle, S, A Pilot Study of Provision For Transsexual and Transgender People in The Criminal Justice System, and the Information Needs of their Probation Officers, 2001.
(15) Stephens, P and Whittle, S, supra.
(16) Stephens, P and Whittle, S, supra.
(17) Stephens, P and Whittle, S, supra.
(18) Turner, L, and Whittle, S, A Research Project of Transphobic Hate Crime in the European Union, 2009.
(19) Kupers, T, Prison Madness: The Mental Health Crisis Behind Bars and What We Must Do About It, 1999.
(20) See also Stephens, P and Whittle, S, A Pilot Study of Provision For Transsexual and Transgender People in The Criminal Justice System, and the Information Needs of their Probation Officers, 2001; Equality and Human Rights Commission, Public Sector Guidance, 2010. Available at http://www.equalityhumanrights.com/uploaded_files/PSD/psd_trans_guidance.pdf