The Government published new guidelines on the treatment of transgender prisoners in England and Wales in 2016. This note looks at these, and at the position in Scotland and Northern Ireland.Jump to full report >>
This note discusses policy towards transgender prisoners in England and Wales, Scotland and Northern Ireland.
In November 2016, the Ministry of Justice published the first official statistics on transgender prisoners. A data collection exercise in March/April 2016 showed that there were 70 transgender prisoners in 33 of the 123 public and private prisons in England and Wales. A Ministry of Justice report published in November 2017 said there were 125 transgender prisoners in England and Wales who had had a local transgender case board when data was collected in March/April 2017. 47 of the prisons in England and Wales said that they had 1 or more transgender prisoners.
In November 2016, the National Offender Management Service (NOMS) published a revised policy on transgender prisoners. NOMS had initiated a review of the issue early in 2015. However, late in 2015 its scope was broadened following the deaths of two transgender inmates, and another case where a transgender woman was first sent to a male prison, but was later transferred to a women’s prison after a public petition.
2011 policy guidelines for England and Wales had stated that prisoners should normally be located in the prison estate of their gender as recognised by UK law. For transgender prisoners, a Gender Recognition Certificate (GRC) would normally be necessary before a person could be placed in a prison corresponding to their acquired gender. However there was some flexibility for trans prisoners who were “sufficiently advanced in the gender reassignment process”.
The Women and Equalities Committee looked at the issue of transgender prisoners as part of their wider report on Transgender Equality, published in January 2016. The Committee said there was a “clear risk of harm” where trans prisoners are not located in a prison “appropriate to their acquired/affirmed gender”.
The Government published a report on their policy review in November 2016 which acknowledged that the treatment of transgender people in the criminal justice system had not kept pace with wider social views. Whilst earlier 2011 guidelines had emphasised the role of GRCs and medical interventions, the report noted that many transgender people successfully lived their lives without these. The new policy needed to “take as its starting presumption a wish to respect someone in the gender in which they identify”.
The new policy guidelines, Prison Service Instruction 17/2016 states that “all transgender prisoners (irrespective of prison location) must be allowed to express the gender with which they identify”. Such prisoners must be asked their view of the part of the prison estate that reflects this; however a decision to locate them in a prison which does not accord with their legal gender can only be made following a Transgender Case Board. Those who wish to be placed in a prison location which is not consistent with their legally recognised gender must provide evidence of living in the gender with which they identify. Assessments will be made on a case by case basis.
In Scotland, 2014 policy guidelines state that the social gender in which the prisoner is living should be fully respected, regardless of whether or not they have a GRC.
The Northern Ireland Prison Service has no recent record of any prisoners who have self-identified as transgender. Their needs would be considered on a case by case basis, to include arrangements for where they would be accommodated and how they would engage in the prison regime.
Commons Briefing papers CBP-7420
Author: Jacqueline Beard