The recent Prison Service Instruction (PSI) governing the care and management of transgender offenders (PSI 17/2016), provides some much-needed updates to the guidelines governing the treatment of transgender persons in custody.
The new guidance is particularly timely, coming as it does in the wake of the most recent death in custody of a transgender woman, Jenny Swift, at all-male prison, HMP Doncaster, at the end of last year.
The circumstances of her death will be sadly familiar to anyone aware of transgender equality issues within the prison service – prison authorities repeatedly refused her transfer to a woman’s estate, and after being subject to constant humiliation from not just other prisoners but also prison staff during her five weeks at HMP Doncaster, she was found unresponsive in her cell in the morning of 30 December 2016 and pronounced dead shortly afterwards.
Ms Swift’s death is the third apparent suicide of a trans woman in prison in the space of little over a year. On 20 November 2015, Vikki Thompson, who was 21 and had identified as a woman since her mid-teens, was found dead at Armley Jail in West Yorkshire. Requests by her solicitor that she be sent to a women’s prison were refused and calls were made for a change in the law after her death. Just weeks later, Joanne Latham was found hanged in HMP Woodhill, prompting a review of policy regarding transgender prisoners.
Though the investigations into Ms Swift’s death are ongoing, what is known from media interviews with a friend of hers presents a disturbing picture of institutional disregard and callousness when it comes to treatment of transgender people within the prison system. Allegedly, several prison guards insisted on referring to her as ‘mister’, and she protested against prison staff’s attempts to force her to wear male clothing by entering the prison estate naked. Most disturbing of all, according to her friend, Ms Swift, who had been in the process of transitioning for several years, had her hormone treatments cut off by prison services. If this is true, then this goes beyond discrimination – suddenly stopping hormone treatment has potentially life threatening consequences, in addition to severe psychological ones. As Jane Fae wrote in the Guardian earlier this month, coming off hormones ‘was one of the bleakest periods of my life. Two weeks in, I hit a wall of misery and darkness such as I had never experienced before.’
The newly released PSI advocates a more flexible approach to housing transgender prisoners, addressing the prison authorities’ hitherto inflexible insistence on housing offenders according to their ‘legally recognised gender’. According to the Gender Recognition Act 2004, proof of gender is determined by a person’s birth certificate, or by a gender recognition certificate (GRC) which can be obtained according to processes set out in the Act. In practice, however, most transgender people do not have gender recognition certificates, because of the convoluted legal processes involved and the associated costs, not to mention the stigma and symbolism of the act, and other legal implications of doing so such as ramifications for existing marriages, etc. In the absence of these certificates, transgender people continue to be housed according to the gender they were assigned at birth, with serious implications for their safety and mental well-being.
Furthermore, the Equality Act 2010 defines a transgender person to whom its protections apply as someone who is ‘proposing to undergo, is undergoing, or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex.’ In other words, legal protection against discrimination is not limited only to those who have already completed the full process of gender reassignment – a fact which is arguably at odds with the approach taken by the prison service to date.
According to a bulletin produced by the Prison and Probation Service Ombudsman in January 2017, transgender persons are consistently identified in academic literature as being at greater risk of self-harm, abuse and assault in the heavily gender segregated (or ‘hyper-gendered’) environment of prison.
In contrast to the previous approach, the new PSI specifically requires prison services to consult the offender and take into account whether they identify as transgender, and if they have expressed a consistent desire to live permanently in the gender they identify with, regardless of whether they can provide evidence of their legal gender. The PSI also imposes obligations on prison services to identify transgender prisoners at first contact, obtain their consent before disclosing their legally recognised gender and accommodate their needs in accordance with the Equality Act 2010. However, the extent to which these obligations to consult will translate into a significant change in practice remains to be seen, and issues such as ending transphobic bullying and ensuring appropriate support for mental health problems also need to be addressed.
Even as Theresa May introduces the welcome ‘Alan Turing Law’, posthumously pardoning thousands of gay and bisexual men who were convicted under outdated indecency laws criminalising same sex relationships (homosexuality was decriminalised in England and Wales in 1967), transphobia endures in public institutions and discourse. One report by the Independent in 2016 cited a 170% increase in transphobic hate crimes between 2011 and 2015, and a corresponding decrease in the number of prosecutions by the police for hate crimes reported by transgender people. The figures reflect, the report concludes, a systemic lack of training of police officers and the CPS about transphobia and a culture of not taking transphobic attacks seriously, leading to a breakdown in trust between the police and the transgender community.
LGBT charities Stonewall and Galop regularly report that transgender people in particular face disproportionate levels of hate crime, bullying and abuse. At the same time, the Daily Mail columnist Sarah Vine, wife of MP and former Secretary of State for Education Michael Gove, recently ran a widely-read column calling for the end of transgender education in schools, saying that such education threatened the sanity of ‘normal children’. This wasthe latest in a series of articles by the newspaper disparaging transgender rights, and reminiscent of Margaret Thatcher’s proposals to ban the teaching of same-sex relationships in schools as ‘acceptable social relationships’ in the 1980s.
Even though the case of Tara Hudson in 2015, who was released from an all-male prison after exceptional public outcry and unprecedented media support, provides ground for some cautious optimism regarding public attitudes towards gender, Ms Swift’s death shows that the Hudson case very much represents the exception rather than the rule
The Prison Service Instruction came into effect in January 2017 – tragically, a little too late for Ms Swift, but not too late to hopefully alleviate some of the suffering of other transgender people navigating the already difficult and over-crowded prison environments of austerity Britain.
Natalie Sedacca is a PhD Candidate in the UCL Faculty of Laws writing on behalf Hodge Jones & Allen.