Housing trans women in female prisons is lawful, High Court rules

2 July 2021, 18:34

It is lawful for transgender women to be housed in female jails in England and Wales, the High Court has ruled.

The ruling comes after a female prisoner, known only as FDJ, brought a legal bid against a Ministry of Justice (MoJ) policy which allows prisoners to be housed according to their gender identity "irrespective of whether they have taken any legal or medical steps to acquire that gender".

FDJ claimed she was sexually assaulted in prison in 2017 by a trans woman with a gender recognition certificate (GRC) - which is not admitted by the MoJ.

Her lawyers argued that accommodating transgender women in the female prison estate "exposes female prisoners to a risk of sexual assault that would not arise absent that allocation".

Lord Justice Holroyde and Mr Justice Swift gave their written ruling on the case on Friday, dismissing the claim.

Lord Justice Holroyde acknowledged the "fear and anxiety" some female inmates will face if a transgender inmate is in the same jail, but said existing policies should help resolve issues.

He added: "The difficulty which the claimant faces, in my view, is that 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; and it is not the course which the claimant herself says the defendant should have taken."

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"The submissions on behalf of the claimant attached weight to the offending history of the transgender woman concerned; but that is a factor which the care and management policy specifically requires the LCB (local transgender case board) and/or CCB (transgender complex case board) to consider."

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In the ruling, Lord Justice Holroyde also said: "Throughout the policies, the need to assess and manage all risks is repeatedly emphasised."

"A transgender woman, with or without a GRC, who is assessed as suitable to be accommodated in the general population may be subject to restrictions if necessary."

"A transgender woman with a GRC will, if necessary for the safety of herself and/or others, be accommodated on E Wing and have no unsupervised contact with women prisoners elsewhere in the prison.

"In an exceptional case, a high risk transgender woman, even with a GRC, can be transferred to the male estate because of the higher level of security which is there available."