214: After Clause 124, insert the following new Clause—
“Sex-specific incarceration for violent and sexual offenders
After section 20 of the Gender Recognition Act 2004 insert—“20A Sex-specific incarceration(1) Where a person with a gender recognition certificate is serving a conviction for a violent or sexual offence, that person shall be treated with respect to housing on the prison estate by reference to the sex registered at their birth.(2) Where a person with a gender recognition certificate is remanded in custody for a suspected violent or sexual offence, that person shall be treated with respect to housing on the prison estate by reference to the sex registered at their birth.”” Member’s explanatory statement
This amends the Gender Recognition Act 2004 to ensure that prisoners with a gender recognition certificate who are suspected or convicted of violent or sexual offences are treated as their sex registered at birth with respect to housing on the prison estate.
My Lords, I am moving this amendment in my name and those of my noble friends to defend the rights of female prisoners. This is not something I ever imagined I would have to do. In my 38 years in Parliament, I have always supported the rights of women, but I was never a champion because a large number of parliamentarians were far better qualified than me and I thought that women’s rights were generally headed in the right direction—not as quickly as they should be, but in the right direction nevertheless.
Now, I find that the rights of women are under the greatest threat I have seen in my lifetime. It is not just about their rights to safe places such as bathrooms, changing rooms, NHS single-sex wards and in prison; their whole existence as biological women is under existential threat as some people—nearly all men—seek to erase the word “women” from the lexicon or commandeer it for the use of men who identify as women. Let me be crystal clear: I completely support the right of men, as guaranteed in the Equality Act, to change their gender and identify as women. They must not be discriminated against. However, let us be equally clear that men who identify as the female gender are not biological women because, as has been said before, only women have a cervix and a womb, and only women bear children. It is not transphobic to point out that elementary biological fact, which has been at the root of human existence for countless millennia.
I believe that the threat against women is increasing daily. Young lesbian women are being condemned as transphobic if they refuse to have sex with men who claim to be women. What a perversion of common sense and reality that is. However, it is worse than that. The police say that there has been a doubling of crime by female paedophiles. That is a big fat exaggeration. Sexual abuse by women has increased, but it is still infinitesimally small in comparison to that by men. Lynne Owens of the National Crime Agency says that the problem of male paedophilia may be seven times higher than first thought. There has been a huge increase in male paedophiles, some of whom then describe themselves as women; of course, a thoroughly woke police force swallows that nonsense and records it as if the rape and sodomy of children was done by real women. Some of our police forces are trashing the reputation of women by accusing them of crimes committed by men. I believe that the message should go out to the police service that when a male is arrested or commits a crime, he should be recorded as male and never as female, no matter how he designates himself.
9:15 pm
Clauses in the Gender Recognition Act clearly indicate that a GRC entitles a bearer to be treated as a member of the sex with which they identify for most purposes but not all. Hence, possession of a GRC expressly does not affect recording of parenthood. The possibility of being convicted of a crime defined as one that only a man can commit is also unaffected by possession of a GRC, as is the possibility of being a victim of a crime defined as one which only a female can be a victim of. Primogeniture is also unaffected.
I submit that incarceration for violent and sexual offences is a situation where a GRC should not take precedence over unchanged biological sex. The MoJ may be acting lawfully but it is not acting decently nor doing its duty to protect biological-sex women. Indeed, the Ministry of Justice policy documents do not talk about women, but call them non-transgender women, automatically giving top billing to men identifying as women, with real women described as non-transgender. That is why I say that women are being erased from the lexicon. A male, no matter how he identifies, should never be housed in a women’s prison. Like many government departments and organisations, the Ministry of Justice has fallen for the minority, militant transexual agendists, giving far more rights to men who claim to be women than to women themselves. My amendment is a small first step to defend women. There will be many more amendments to come as people realise that the assault on women is now a clear and present danger. I commend my amendment to the Committee.
My Lords, the problem that Amendment 214 is trying to resolve is already addressed in the very strict codes of practice and guidance to the prison sector. Given that there is a full system of assessment of transgender prisoners, the prison environment in which they are currently placed and that in which they would like to be placed, it is worth running through the detail.
The noble Lord, Lord Blencathra, quoted from last year’s judicial review, but paragraph 75, where the explanation for the ruling starts, states:
“It is clear that the number of transgender women in women’s prisons is small, and the number who hold GRCs (and are therefore entitled to be treated as women in accordance with the Gender Recognition Act 2004) is very small.”
I say that in the light of the tone of the speech by the noble Lord, Lord Blencathra, which made it appear that there was a large invasion of trans women in women’s prisons.
The number of transgender prisoners is very small. However, the guidance on the management of prisoners is lengthy and clear, because transgender prisoners have human rights, as all prisoners do, and because they themselves are at serious risk in prison. The most recent statistics are from last year, and in its coverage of the data, the BBC noted:
“The total number of transgender victims far exceeds the number who were suspected of carrying out sex attacks, with only one such case in 2019.”
Between 2016 and 2019, of 97 sexual attacks in the women’s prison estate, seven trans women had been involved in sex assaults, either as the alleged perpetrator or assistant, with 90 of the sexual assaults being carried out by cis women. A further set of figures from the Ministry of Justice states that 11 trans women had been sexually assaulted in the men’s prison estate in 2019 alone. All this tells us that trans women are far more likely to be victims of assault in prisons than perpetrators and that many more women are assaulted by cis women in prison than by trans women.
My Lords, I support the amendment moved by the noble Lord, Lord Blencathra, this evening. I do so not just because I have attached my name to it, but because I emphatically agree with what it seeks to achieve. Anyone who knows me is aware that I am an advocate for a strong law-and-order approach to crime; for those who break the law, the punishment must fit the crime—which often includes imprisonment. This amendment, however, is trying to protect the dignity of female prisoners.
The female prison estate is currently run as a mixed-sex institution. This is because the Ministry of Justice’s policies permit prisoners of the male sex who identify as transgender and fulfil certain criteria, resulting in them being held alongside vulnerable female prisoners. Some of these prisoners have been convicted of the most serious violent and sexual offences and are biologically male.
It surely follows that women’s prisons should be separate-sex facilities to preserve, as far as reasonably possible, the safety, dignity and privacy of women in prison. Since the Corston report in 2007 it has been acknowledged throughout the criminal justice system that women in prison exhibit patterns of vulnerability that distinguish them both from women in the wider community and from male offenders. It is also worth noting that female offenders report disproportionately high rates of previous experience of violent and sexual abuse, and experience high rates of mental health problems.
Where women in prison have been victims of violent and sexual assault, prison is often the very first time they can be confident that they will be away from their abusers, who are usually men. I strongly contend that, where women in prison have been victims of sexual and violent abuse at the hands of males, the presence of any offender of the male sex may have an inherently traumatising effect, regardless of the nature of the offence committed.
It is the Ministry of Justice policy—namely, The Care and Management of Individuals who areTransgender —that permits prisoners of the male sex to be housed in the female estate. The policy states that all male prisoners who identify as transgender and who are in possession of a gender recognition certificate must be allocated to the female estate. This is irrespective of any conviction, offending history, risk profile or anatomy, including those who are high-risk prisoners and those convicted of violent and sexual offences against women.
My Lords, Amendment 214 seeks to eliminate the risks and dangers to women in prison by the muddled use in legislation of the terms “sex” and “gender”. They are not interchangeable. They have come to mean very different things. Matters have reached such a pitch that I am tempted to paraphrase the 18th-century man of letters Dr Samuel Johnson and say that “Allowing a person with a full set of male genitals the legal right to serve a sentence in a women’s prison is not done well, but you are surprised to find it done at all”. It is, not to put a too fine a point on it, barking mad.
9:30 pm
The defiance of science, biology, common sense and reality can be traced back to the Gender Recognition Act 2004. This allows men who identify themselves as women to be recognised as women, even though they may be biologically unaltered from the day they came into this world in their birthday suits. The dangers and risks are obvious. Without our amendment, this legislation makes them even greater. The law also allows new birth certificates to be issued, without requirement of surgery or medical treatment. For all legal purposes, men become females with just a tap of a key on a computer. Piling absurdity on absurdity, it becomes a criminal offence to reveal that they were ever born as men.
As night follows day, just as paedophiles are attracted to the teaching profession and children’s charities, so men with violent sexual intent will be able to seek a gender recognition certificate as a licence to molest and rape women. The Ministry of Justice, in its folly, cannot provide figures for men guilty of such acts because, in a policy of self-inflicting Catch-22, they are categorised as women.
It is surely a fundamental right that women in prison, like women in a gym changing-room or a women’s lavatory, should be allowed to find themselves cohabiting with a person who does not have a penis. We all know that women in prison are especially vulnerable. It is therefore unthinkable that the law should allow them to be menaced by men incarcerated for violent and sexual abuses. The noble Baroness, Lady Brinton, says that it is only a small number, but a small number is a number. Is that what the law is about? The law should protect all.
Let me make one thing very clear: I am second to none in my support for gay, lesbian and trans rights. This has nothing to do with it. I still have the scars from having to fight as a young woman for equal opportunities in the male-dominated financial services industry. I still bear the scars of having to fight off crude sexual advances that today would carry a jail sentence. In one case, because I refused to submit to my boss’s advances, my promotion was held back for more than a year. This is why I was once a Stonewall supporter. It fought the good fight and won. The Marriage (Same Sex Couples) Act 2013 was a triumph for the humane society we strive to be.
20 of 144 shown
I turn to prisons, the substance of my amendment. I am afraid that the situation there is just as bad. Although I suspect that I am in a minority in this House—as I am on many things—I am not one of those who believes that women should not be sent to prison. When the crime justifies it, women should go to prison and be punished. However, that punishment should not include the threat of rape and violence from big, brutish rapists who have decided to identify as women and get sent to a women’s unit. The female prison estate is currently run as a mixed-sex institution because the MoJ’s policies permit prisoners of the male sex, where they identify as transgender and fulfil certain criteria, to be allocated to the female estate and held in women’s prisons alongside vulnerable female offenders. Eligible males include those convicted of the most serious, violent and sexual offences and those with intact male genitalia.
Among others in prison at the moment, there is a vile man—I would describe him as vile—who raped two children, got his gender recognition certificate while in prison and is now swaggering around a female prison wing. I cannot name him or his prison. I believe that women’s prisons should be separate, single-sex facilities for the safety, dignity and privacy of women in prison. Since the Corston report in 2007, it has been acknowledged throughout the criminal justice system that women in prison exhibit patterns of vulnerability that distinguish them from both women in the wider community and male offenders. Female offenders report disproportionately high rates of previous experience of violent and sexual abuse; they also experience high rates of mental health problems. Indeed, in the previous debate, I heard the noble Lord, Lord Dubs, say that three-quarters of women in prison had suffered male violence before being sent to prison. A recent study of prisons in Scotland found a high prevalence—almost 80%—of significant head injury; these injuries were most often caused by repeated incidents of domestic abuse occurring over several years.
For many female prisoners, time in prison is often the first opportunity to tackle the complex issues around their offending, improve their health and access the services they need. Where women in prison have been the victims of sexual and violent assault, prison is often the first time they can be confident that they will be away from their male abusers. Where women in prison have been the victims of sexual and violent abuse at the hands of men, the presence of any offender of the male sex may have an inherently traumatising effect, regardless of the nature of offence committed. It is for good reason that approaches to tackling female offending have consistently emphasised the need for trauma-responsive services.
The Ministry of Justice policy that permits prisoners of the male sex to be housed in the female estate is called The Care and Management of Individuals who are Transgender. The policy states that all male prisoners who identify as transgender and who are in possession of a gender recognition certificate must be allocated to the female estate. The conviction, offending history, risk profile or anatomy are of no consideration.
Theoretically, a decision may be made to transfer to the male estate after risk assessment. We know of no situation where this has happened. Even the most high-risk male prisoners have remained in the female estate, including those convicted of violent and sexual offences against women and those with intact male genitalia. In respect of male prisoners who identify as transgender and who have no gender recognition certificate, initial allocation is to the male estate. The prisoner may then make an application to be transferred to a women’s prison.
In March 2021, a judicial review was brought against the Secretary of State for Justice, challenging the lawfulness of the MoJ’s policies that permit prisoners of the male sex to be housed in the female estate. Judgment was handed down in July and found that these policies are not unlawful. It would be quite extraordinary if the MoJ was found to be operating an illegal policy. However, the judgment was clear that the court had been called on to rule as to the lawfulness of the policy and not its desirability.
Lord Justice Holroyde acknowledged the negative impact of these policies on women in prison. He said
“I readily accept that a substantial proportion of women prisoners have been the victims of sexual assaults and/or domestic violence. I also readily accept the proposition … that some, and perhaps many, women prisoners may suffer fear and acute anxiety if required to share prison accommodation and facilities with a transgender women who has male genitalia, and that their fear and anxiety may be increased if that transgender woman has been convicted of sexual or violent offences against women.”
He also said:
“I fully understand the concerns advanced on behalf of the Claimant. Many people may think it incongruous and inappropriate that a prisoner of masculine physique and with male genitalia should be accommodated in a female prison in any circumstances.”
I agree with Lord Justice Holroyde that it is both incongruous and thoroughly inappropriate. If it is lawful to house prisoners of the male sex who have been convicted of the most serious violent and sexual offences alongside women who have been the victims of violent and sexual assault, that law must change. It is wrong.
Under the Gender Recognition Act 2004, people who fulfil certain criteria are able to obtain legal recognition of their acquired gender. Legal recognition will follow from the issue of a gender recognition certificate by a gender recognition panel. A new birth certificate is also issued, with the sex marker changed to reflect the acquired gender and the name changed to the newly adopted name. There is no requirement for surgery or medical treatment to obtain a GRC.
GRCs have been obtained in prison by males convicted of violent and sexual offences who have then transferred to the female prison estate. I do not consider that the original intention of the Gender Recognition Act was to enable violent or sexual offenders of the male sex to be housed with women in prison, much less those who retain fully functioning male genitalia. I also make this point: these male prisoners want to identify as women. That is perfectly okay. Apparently, they do not want their male bodies, but every single one of them have retained their male genitalia as they swagger around female prison units. I suggest that those men, particularly those in prison, are simply faking being a woman to get access to real biological women in a female estate.
However, even if the number of trans prisoners assaulting others is very low, it is right that there are safeguards in place, so what does the guidance say? It says that after a prisoner declares and can provide evidence that they are living in the gender that the offender identifies with, there will be an initial local transgender case board which will, as appropriate, make arrangements for transfers to other parts of the prison estate.
The Parole Board published Guidance on Prisoners who are Transgender in March of this year, which sets out the law very clearly for the prison and probation services regarding prisoners who are transgender. The operational guidance states that
“all transgender individuals, irrespective of whether they are located in the estate which matches the gender with which they identify, must be allowed to express the gender with which they identify. However, decisions to locate individuals who are transgender in prisons that do not match their legal gender can be made only on the recommendation of a Complex Case Board. This board will take into account risk factors to the individual and risk to others”.
To make it clear, for any trans prisoners who might also be deemed a risk to other prisoners, a complex case board has to be called for transgender offenders, which will look at the complexity and specifically assess the risk of harm, prior to making decisions about prison location. The views of the offender must be presented to the board, but a number of healthcare and psychology leads would be there to ensure that any move to a women’s prison would be safe.
Options that a complex case board can consider include moving a prisoner to a women’s prison but keeping them in segregation or, if even that is felt to be too risky, moving them into a segregated part of a men’s prison that is staffed as if it were a women’s unit. There are also now a small number of transgender prison units. It seems that this document sets out well all the steps that need to be taken to protect the trans prisoner—who, as I have already said, is at much higher risk of assault than non-trans prisoners—while also protecting the other prisoners from someone who might be deemed a risk.
There was the case of Karen White, who sexually assaulted two women while on remand at New Hall prison in Wakefield in 2017. It is worth remembering that the Prison Service had to apologise in that case because it had not followed the procedures outlined above, failing all prisoners at New Hall. White should never have been put in a women’s prison and, had there been a complex case board, it would have assessed her as being a risk and not put her in a women’s prison.
The current Ministry of Justice and HMPPS 39-page policy on “The Care and Management of Individuals who are Transgender” says at paragraph 1.6:
“The proper assessment of risk is paramount in the management of all individuals in our care. The management of individuals who are transgender, particularly in custodial and residential settings, must seek to protect both the welfare and rights of the individual and the welfare and rights of others around them, including staff. Decisions must be informed by all available evidence and intelligence in order to achieve an outcome that balances risks and promotes the safety of all in our care and management.”
The process is there to protect all prisoners and to respect the rights and safety of all prisoners. This amendment is redundant. The actual facts of what is happening with trans women in prisons does not match the opening speech by the noble Lord, Lord Blencathra.
I too was going to refer to the judicial review that was brought in March 2021, but the mover of the amendment has adequately covered that, so I will refrain. However, I shall again emphasise one line: while the policies were found not to be unlawful, it should be said again that the judgment acknowledged the negative impact of the policies on women in prison.
Furthermore, there is no requirement under the Gender Recognition Act 2004, if people fulfil certain criteria, for them to have surgery or medical treatment to obtain a GRC. It is a fact, as has already been referred to, that GRCs have been obtained in prison by males convicted of violent and sexual offences who have been transferred to the female prison estate. The latest data available on the number of male-sex prisoners who identify as transgender dates back to 2019, but back then it was 11 in number. I understand that new data will be available to be released, or at least is expected to be released, this month. Forcing women to share accommodation with prisoners of the male sex, particularly where those prisoners have been convicted of violent or sexual offences, arguably engages Article 3 on the right not to be subjected to inhuman or degrading treatment or punishment.
I urge your Lordships’ House to support this reasoned and sensible amendment, which is clearly intended to respect female prisoners, including their rights and dignity. Not to do so could be interpreted as not caring how female prisoners end up. Indeed, the conditions that they are subjected to could be construed as part of their prison sentence—which of course they are not, and never should be.