The practice of housing prisoners according to their gender identity ‘irrespective of whether they have taken any legal or medical steps to acquire that gender’ is lawful, its ruling stated.
A female prisoner known only as FDJ had taken the Ministry of Justice to court arguing that its policy ‘exposes female prisoners to a risk of sexual assault that would not arise’ otherwise.
FDJ claimed to have been sexually assaulted in prison in 2017 by a trans woman who had a gender recognition certificate (GRC) which was not recognised by the government.
The claimant’s lawyers argued the policy discriminates against women who were born female as the risk of such incidents did not exist when transgender men are housed in male prisons.
The MoJ argued the policy helps the ‘rights of transgender people to live in and as their acquired gender’ and protects their mental and physical health.
Lord Justice Holroyde, one of two judges who issued the ruling, said: ‘It is not possible to argue that the defendant should have excluded from women’s prisons all transgender women.
‘To do so would be to ignore, impermissibly, the rights of transgender women to live in their chosen gender.’
FDJ did not call for female prisons to exclude all transgender women but rather to revise policy on how trans women were housed if they were convicted of sexual or violent offences.
Lord Justice Holroyde added that the existing policy already required inmates’ offending history to be accounted for and ‘the need to assess and manage all risks is repeatedly emphasised’ throughout.
Expert panels involved in the process are also ‘expressly required’ to consider prisoners’ anatomy, sexual behaviours and relationships.
He said: ‘In an exceptional case, a high-risk transgender woman, even with a [gender recognition certificate], can be transferred to the male estate because of the higher level of security which is there available.’
‘[The panels[ can, in my view, be expected to be astute to detect any case of a male prisoner who, for sinister reasons, is merely pretending to wish to live in the female gender.
‘The policies require a careful, case-by-case assessment of the risks and of the ways in which the risks should be managed.
‘Properly applied, that assessment has the result that non-transgender prisoners only have contact with transgender prisoners when it is safe for them to do so.’
The judges also rejected a claim by FDJ’s lawyers that transgender inmates are statistically more likely to carry out sex attacks in prison, saying it was a ‘misuse of the statistics’ which are ‘unsatisfactory’ .
They accepted that the ‘unconditional introduction of a transgender woman’ into a women’s prison would raise the risk of sexual assault but that this scenario ‘takes no account of the risk assessment which the policies require’.
Responding to the ruling, FDJ said: ‘I am disappointed with today’s judgment, but I am pleased that the court recognised that women in prison are a vulnerable group and that many women in prison have been victims of domestic and sexual violence.
‘By bringing this challenge, I did not seek to prevent trans women in prison from living in dignity, or to exclude all trans women from women’s prisons.
‘However, I feel that trans women who have a history of violence and sexual offending against women should not be in a situation where they can put our safety at risk.’
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