In 2018 the MOJ released statistics showing half of the people in prison who declare themselves transgender have been sentenced with one or more sexual offences. We have now obtained new data which is the clearest and most recent evidence confirming the vast majority of these trans sex offenders were born male. These MOJ statistics show that transgender women exhibit a male-type pattern of criminality. We conclude that transwomen in prison exhibit a propensity to sexual crime that matches their birth sex and not their gender identity. This is relevant and necessary information when making legislation and policies designed to keep women safe.
High numbers of transgender prisoners have been convicted of sex offending.
We first revealed this in 2017 based on our own analysis of prison inspection reports that allowed us to estimate how many transgender prisoners were being housed in prisons reserved for sex offenders. Our findings were then confirmed by prison statistics obtained from the MOJ through Freedom of Information requests revealing 60 out of the 125 transgender prisoners in England and Wales in 2017 had at least one conviction for a sexual offence.
A new Freedom of Information request submitted by Fair Play For Women now reveals the same pattern is observed in data from 2019. This time 81 out of the 163 transgender prisoners in England and Wales had at least one conviction for a sexual offence.
(Note: No data is available for 2020 because the annual count of transgender prisoners was postponed to due operational difficulties caused by Covid restrictions).
What’s new?
Previously sex crime statistics were given for transgender prisoners as a whole. The information for (male-born) transwomen and (female-born) transmen was combined so there was some doubt expressed over which group was actually responsible for committing the sex crimes.
For the first time we have now obtained sex crime data from the MOJ according to the trans person’s legal sex, their gender identity, or whether they are in a men’s prison or a women’s prison. This means we can draw conclusions regarding the cohort of male-born transgender prisoners specifically. See Appendix for the analysis performed for each data variable. Taken together we conclude:
Half of the male prisoners who declared themselves transgender in 2019 have been sentenced with one or more sexual offences.
Why does this matter?
In recent years an active and important public debate has begun about who should have access to women’s safe spaces. Should access be based on someone’s gender identity or their biological sex? Should women’s spaces be open to anyone who identifies as a woman or should they be reserved for the female sex? Could reforming the Gender Recognition Act 2004 change who gets access to women’s safe spaces to the detriment of women?
It is important for legislators and policy makers to make evidenced-based decisions to ensure the impact on all affected groups is considered, understood and fairly balanced. This means they need information on the demographics of different groups in society, including for transgender women.
The evidence we present here is relevant to two areas of legislation: the Equality Act 2010 and the Gender Recognition Act 2004. It is relevant to service providers when evaluating whether providing a single-sex service is a “proportionate means of achieving a legitimate aim”. It also informs legislators on the potential impact of GRA reform on women in prison.
1) Can the exclusion of transwomen from female-only spaces and services be objectively justified?
The Equality Act 2010 sets out conditions when discrimination based on sex and gender reassignment can be lawful. Provisions in the Act mean people born male, irrespective of gender identity, can be lawfully excluded from female-only spaces or services for reasons of privacy, safety and fairness for women and girls.
Some people argue that ‘transwomen are women’ and like all other women should not be excluded from women-only spaces. Access to women’s spaces should be based on gender identity.
Others argue that ‘transwomen are male’ and like all other males should be excluded from women-only spaces. Access to women’s spaces should be based on birth sex. They should be female-only.
To make the right decision policy makers need to understand why their specific women-only space is needed and whether this can be achieved with a policy based on gender identity or birth sex.
If a space is considered necessary in whole or in part to protect women from the physical or psychological impact of sexual crime (sexual assaults, voyeurism, triggering a survivor of sexual abuse) this means policy makers need to understand sex crime patterns.
It is well known that most sexual and violent crime is overwhelmingly committed by men and that’s why women and girls sometimes need their own safe space away from men. Not because all men pose a danger but because saying no to all men is a simple and effective way to keep women and girls safe.
MOJ Offender Management Statistics show that men and women have very different patterns of criminality; men have a higher propensity to commit sexual crimes. The difference between the two sexes is stark.
Data from March 31st 2019 show that 99% of the 13359 sex offenders in prison in England and Wales were male (13234 prisoners). Only 1% of sex offenders were female (125 prisoners).
Data from March and April 2019 show that 17% of men in prison in England and Wales have been sentenced for a sexual offence (13234 out of a total of 78781 men in prison). However, only 3% of women in prison in England and Wales have been sentenced for a sexual offence (125 out of 3812 women in prison).
We can now answer a simple question about transgender women criminality:
Does the crime pattern observed in the transwomen prison cohort match what we see for men or for women?
The fact that half of male prisoners who identify as transgender have been sentenced for sexual crime is strong evidence that transwomen exhibit a high propensity to commit sexual crime similar to that observed for men. They do not exhibit a low propensity to commit sexual crime like that observed for women.
It appears that identifying as a woman does not reduce the risk that male people can pose to others. If identifying as a women did reduce the propensity to commit sex crime to female levels we would have expected to see just 3 or 4 of transwomen in prison with sex crime convictions. Instead we see up to 76.
See Appendix 2 for more discussion about whether the conclusion we have reached is valid
!!This doesn’t mean that all transwomen are sex offenders!!
For the avoidance of doubt, and because this is a very sensitive topic, this data does not show that all or most transwomen in society are predatory males. Likewise, acknowledging that men as a class commit most sex crimes does not mean most men are sex offenders. The vast majority of males do not pose a sexual threat to women. However, women won provision in the Equality Act to exclude all males from some spaces because we can’t tell who is a threat and who is not. Excluding all males is a simple and effective way to keep women and girls safe.
Transgender pressure groups argue that males who identify as women should be exempted from this safeguarding convention and treated differently from other male people. Some people consider it transphobic to even question this. However, they offer no evidence to reassure women that opening access to this group of males would have no impact on women’s safety. There is a paucity of research on transgender women so this analysis is an attempt to address this issue to enable evidence-based discussion.
2) What effect would GRA reform have on women in prison?
Transgender pressure groups want the law to be changed to allow anyone to swap their legal sex status on demand (self-ID) rather than needing medical approval. This would mean any male could self-declare as a woman and get a new birth certificate to say they’d been born female.
The Government recently rejected this idea after a length consultation process concluding that “It is the Government’s view that the balance struck in this legislation is correct, in that there are proper checks and balances in the system and also support for people who want to change their legal sex”
However, it remains Labour and LibDem party policy that they would introduce self-ID through GRA reform. Many conservative MPs also favour this position. The Women and Equalities Select Committee is conducting another inquiry into GRA reform and made a ‘call for evidence’ in October 2020. One of the questions is “Are there challenges in the way the Gender Recognition Act 2004 and the Equality Act 2010 interact?”.
These MOJ sex crime statistics highlight one of the ways GRA reform would directly impact women.
Some policies are already being created based on the assumption that GRC holders should be treated more favourably than non-GRC holders. One example is the HMPPS 2019 prison policies; namely the “HMP Downview E Wing policy” and “Care and management of individuals who are transgender”.
Current prison policy requires that “all individuals who are transgender must be initially allocated to part of the estate which matches their legally-recognised gender [sex recorded on their birth certificate]”(Section 4.6). This is to give time for a transgender case review to be conducted that includes an assessment of the physical risks to other prisoners if a transwoman wishes to transfer into a women’s prison. The most recent MOJ statistics from 2019 show there were 11 transwomen legally recognised as male housed in women’s prisons. Prisoners with a GRC are excluded from the annual transgender count so there are no accurate figures of the total number of transwomen (with and without a GRC) in women’s prisons.
If a transgender prisoner without a GRC is considered to present a high risk of harm to female prisoners that person will be located in a men’s prison (while being fully supported to express the gender with which they identify). The MOJ sex crime statistics for 2019 have revealed that 81 of the prisoners who have had a transgender case review have at least one conviction for sexual offending. Only 5 were allowed to be housed on the women’s estate. The decision was made for 76 trans sex offenders to remain in men’s prisons.
If the process to obtain a GRC became a self-declaration process it would be possible for all 129 transwomen currently held on the men’s estate (including the 76 transwomen sex offenders) to obtain a GRC on demand. The prison system would then have to treat them differently. Some would be moved into mixed population with women and others would be housed in special accommodation unit.
If a transwoman with a GRC is considered to present a high risk of harm to female prisoners that person will be located on E-Wing at Downview women’s prison. This is because they are “required to be located in the women’s estate because they hold Gender Recognition Certificates and are legally female” (as stated in paragraph 3.1 of E-Wing policy). During the day some of these high-risk transgender prisoners will “have access to the …. activities within the main site alongside other women” (paragraph 10.3 of E-wing policy). No official figures are available for the number of GRC holders in prison but it has been reported there have been up to 3 GRC holders requiring supervision in E-wing.
GRA reform could lead to a dramatic increase in the number of transwomen housed on the women’s estate. Increasing from at least 14 (11 without a GRC and 3 in E wing) to as many as 143. This could mean that around 1 in every 30 prisoners in the women’s estate would have been born male and not female.
Up to 76 of these transwomen obtaining a GRC by self-ID could be the ones with convictions for sexual offending, including rape and sexual assault (the data set for this group includes convictions 36 convictions for rape, 10 for attempted rape and 21 sexual assaults).
The fact that GRC holders are treated more favourably than non-GRC holders in prison presents an incentive to all 80,000 males in prison, including 13,000 male sex offenders. The current medical gatekeeping process prevents exploitation of this incentive but a self-declaration system will be unregulated and open to abuse. Expert written evidence was provided to 2015 Trans Inquiry conducted WESC to say exploitation by non-transgender prisoners should be expected.
Some sex offenders will be considered too dangerous for unsupervised association with women and so would be housed in E-wing (current capacity 16 beds). Nevertheless the expectation is that where ever possible they will be allowed supervised access to communal activities on the main site such as the chapel, canteen, laundry, showers, telephones, gym and exercise classes. Fair Play For Women has seen the unpublished Equality Impact Assessment for E-wing where it states this is to allow them to experience as much of the women’s regime as possible and to ‘foster good relations’ with other women.
While the physical safety of the female inmates has been considered as part of E-wing policy it is apparent that the psychological impact of forcing women to share space with high-risk prisoners they perceive as male has not. It is well known that a high proportion of women in prison have experienced male violence and sexual abuse. The impact on their mental well-being, rehabilitation success and self-harm rates has never been assessed. This is currently the subject of a Judicial Review of transgender prison policy expected to be heard in the High Court in early 2021. It will be argued that current prison policy indirectly discriminates against women in prison and should be scrapped and redrawn.
However, as policy stands now it means GRA reform could lead to an extra 76 male sex offenders moving to women’s prisons. This is a practical example of what GRA reform would mean for women. Women in prison are stakeholders in GRA reform. The idea that GRA reform only impacts transwomen is demonstrably wrong.
Appendix 1:
The full dataset can be downloaded here.
1) Data on legally male transgender prisoners
This data refers specifically to male-born transgender prisons. 129 transgender prisoners said their legal gender was male [i.e. the sex written on their birth certificate is male]. The HMPPS Offender Equalities report states that “Prisoners who have already transitioned and have a full Gender Recognition Certificate are excluded from this dataset”. This means no female-born transgender prisoners who have become legal male on their birth certificate by virtue of a GRC will be included in this count. All 129 transgender prisoners must therefore be legally male by virtue of birth.
2) Data on transgender prisoners housed in male prisons:
3) Data on transgender prisoners house in the male prisons who ‘identify as female’
Some of the data published within the HMPPS Offender Equalities report is obtained by asking transgender prisoners what their ‘legal gender’ is. This self-reported ‘legal gender’ may not always be accurate and is not confirmed by checking any official records. While most transgender prisoners in men’s prisons accurately reported their ‘legal gender’ as male, two reported their ‘legal gender’ as female. The most likely explanation is that these prisoners have provided false information because the report states that “Prisoners who have already transitioned and have a full Gender Recognition Certificate are excluded from this dataset” .
Any doubt regarding the sex of the transgender prisoners can be avoided by instead using the data on gender identity. When asked about the gender with which the prisoner identified 119 said they identify as ‘female’ (10 did not give a response). This means we can say with absolute confidence that at least 119 of the 129 prisoners in men’s prisons were transwomen.
Even if all 10 transgender prisoners in men’s prisons who did not confirm their gender identity were sex offenders this still means AT LEAST 66 of the 119 confirmed transwomen must have been sentenced for one or more sexual offences (55%)
Taken together, no matter which data variable is used, the result is that over half of the transwomen cohort identified as at least one conviction for sexual offending.
Appendix 2:
Are our conclusions based on this data valid?
We have used the MOJ sex crime and transgender statistics to conclude that transwomen in prison exhibit a male-type pattern of criminality. However, it could also be argued that 76 transwomen with a sexual conviction is indicative of low female levels. This would be the case if lots of transwomen hide their transgender status in prison and so don’t get included in the annual transgender count. It could be that transwomen on short sentences are more likely to hide their status in prison and do not request a transgender case review. This would skew the annual transgender count by selecting for prisoners on longer sentences and more serious crimes, meaning sex offending convictions are disproportionately represented.
There are about 80,000 men in prison in England and Wales. This represents about 0.34% of the adult male population. If transwomen exhibit a male-type criminality pattern we would expect to see the same 0.34% of the adult transwomen population in prison. Unfortunately no reliable data exists for the size of the transgender population in the UK but estimates have ranged up to as many as 500,000. If we assume the transgender population is distributed according to location, sex and age similarly to the UK population as a whole this estimate would mean there would be up to 180,000 adult males who identify as transgender in England and Wales. Based on that scenario we’d expect to see 612 in prison (0.34%) meaning that as many as 4 in 5 male-born transgender prisoners are not revealing their trans status. This is likely to be a significant over-estimate, but if this were the case then 76 trans sex offenders would still represent 12% of transwomen prisoners in men’s prison and a much higher rate of offending than the low level observed for women in prison of just 3%.
In fact, there would need to be at least 2317 transwomen in prison for the figure of 76 transwomen sex offenders to reflect the lower female levels of sex offending of 3%. For this to be true as many as 95% of all transwomen sent to prison would need to be hiding their trans status when sent to prison. There is no evidence to suggest such a large level of under-counting exists.
UPDATE 13/01/21: In a recent report by Bent Bars (page 12) it is claimed there could be up to 1600 trans prisoners in prison, meaning sex offending levels in 2017/18 represent just 4% of the trans population. This is based on on a Prison Inspection report that estimates 2% of the male prison estate is transgender. (Appendix 6, page 116, Survey question 19.7). It should be noted that the Prison Inspection report marks the 2% figure as “not significant and may have occurred by chance”.
Taken together we conclude that this analysis of official MOJ statistics provides good evidence that transwomen in prison exhibit a male pattern of criminality and do not exhibit a female pattern of criminality. Crime patterns correlate with birth sex and not gender identity. This supports the idea that, when a women-only space is needed to protect against the physical and psychological impact of sex crimes, access should be based on birth sex and not gender identity. All males should be excluded, including males who identity as women.