In July 2019 a specialist unit was opened on the Downview women’s prison estate to house high-risk transgender prisoners, including transgender sex offenders. We obtained the Equality Impact assessment through a Freedom of Information Request. The document is now available to view here: Equality Analysis Document E Wing Version 16.0 for publication
This internal document gives us an invaluable insight into the thought processes that led to the policy.
‘E wing’: A place to house dangerous trans prisoners.
‘E-wing’ was the solution to a problem of where to accommodate high-risk male prisoners who have acquired a GRC and so need to be treated as “female for all purposes”. Some of these prisoners are dangerous sex offenders who under normal circumstance would be considered too high-risk to mix with women. But the MOJ decided that their GRC meant they had to be treated differently from the trans prisoners without a GRC. It is interesting to reflect on this because we’ve been repeatedly told by transgender pressure groups that an GRC is ‘just admin’ and that having one wouldn’t have any impact on women’s single sex spaces. Clearly, as we have said all along, it was influencing policy decisions.
It is then confirmed on page 5 that the MOJ considers trans prisoners are “required to be located in the women’s estate because they hold a GRC”. No acknowledgement of the single-sex exemptions that enable males to be excluded from female-only spaces, even if they do have a GRC.
The decision to put a trans accommodation unit on the female estate and not the male one.
The MOJ considered two main options. They could either put a wing for high-risk trans prisoners on the female estate or the male estate. They decided on the former.
“Option 1: A bespoke and separate unit in the women’s estate enables these high-risk transgender women to be located within the women’s estate with access to the women’s regime including risk-assessed association with other women. Placement in a bespoke unit would allow greater control over the management of these prisoners to ensure the safeguarding of the other female prisoners whilst also enabling the individual’s access to a greater regime than would be provided on a unit in the male estate or in segregation.”
“Option 2: A bespoke and separate unit in the male estate would ensure that the rights of female prisoners were protected. However, whilst female services could be delivered to the unit, it would be very limited compared to what could be offered within a women’s prison. In addition, any level of association would be difficult in the male estate. Therefore, it was decided that a unit in the female estate would be the most appropriate way forward”.
Option 2 was to put the accommodation block for the high-risk ‘legally female’ trans prisoners on the male estate. This option was acknowledged as the safest option for women prisoners – if they are on the male estate then of course there’s absolutely zero risk of any adverse impact on the safety or well-being of women in prison. However, this option was rejected because the delivery of ‘female services’ to transwomen on the male estate would be ‘limited’ compared to what they could get on the female estate. It’s not clear what ‘female services’ a male-born prisoner might need. Clearly these would not be female health care services like gynaecological screening or managing periods etc. In fact, it is likely that the necessary male health services required by a transwoman would be more easily delivered on the male estate.
Option 2 was also rejected on the grounds that ‘association’ with other women would be difficult. So instead Option 1 (using E-wing on the female estate at Downview) was the preferred way forward to enable this ‘association’ with women. This means that association with women is considered to be not just an unfortunate side effect of the policy but a necessary and important part of the regime provided to the high-risk trans cohort, that can include dangerous male sex offenders.
The ‘E-wing’ would be for high-risk transwomen only
“Initially, the proposal was for a high risk prisoner unit in the women’s estate with the aim that other women of an equivalent high risk level, both non-trans and trans, would be located on the unit, in order to eliminate discrimination and foster good relations. By applying to both non-trans and trans high risk women prisoners, the prison service would have been treating those of similar risk levels in an equal manner.”
At first the idea was that E-Wing would be for high-risk women in general (trans or not trans). This was so that high-risk trans prisoners didn’t feel singled out but ensuring they were treated no differently from high-risk women and therefore would ‘foster good relations’. However, it was soon realised that this could not work in practice. Crucially here they acknowledge that ‘transgender women can pose specific risks to other women which do derive from their transgender status’.
“Some transgender women pose specific risks to other women which do in part derive from their transgender status. These may be from their offending history (e.g. sexual offences, or violent offences), or may be as a result of their anatomy/physiology (e.g. their size/strength/genitalia). Other women do not, at least in the prison service’s experience, tend to pose a similar level of risk”.
This difference is noted to include the type of sexual offending and their anatomy/physiology. What they mean here of course but have not dared to say is that the difference between transwomen and women is their sex. Transwomen are not the same as ‘other women’ because they are male and have male bodies – male bodies with superior size and strength and a penis that can be used for rape.
There was no need for a specialist unit for high-risk transmen
“Operationally no equivalent need has currently been identified for transgender men in the male estate because, as far as HMPPS is aware, there are no transgender men within the male estate”.
Here it is confirmed that there are no transmen on the male estate. It would of course be highly dangerous for female-born prisoners to be housed alongside men, no matter how they identify. If in the future the need arose (presumably if a transman ever had a GRC and so was legally male) then the unit will need to “safeguard them [the transman] from potential harm in the male estate”. This clearly acknowledges a clear operational difference between a unit for transmen compared to a unit for transwomen. The unit for transmen is to protect them from other prisoners (men). Whereas the unit for transwomen is to protect the other prisoners (women) from them.
“If the operational requirement arose for transgender men in the male estate, the operational need for transgender men may be for a unit which is to safeguard them from potential harm in the male estate. The Transgender Complex Case Board will however have to consider this carefully when making decisions around transgender men moving into the male prison estate”.
It is worth reflecting here on the fact that no transmen have been allowed onto the male estate because of the clear and obvious dangers of mixing males and females. These dangers will exist regardless of whether it’s happening on the male or female estate, but mixing of the sexes is only happening on the female estate and never the male.
High levels of staff supervision will be required
“ACTION – Staffing levels to be sufficient to enable the levels of supervision required for women to access regime”.
Male-born transgender prisoners with a GRC must be considered “female for all purposes” and so the MOJ does not want to treat them any differently to the ‘other’ women. This means allowing them to experience as much of the ‘women’s regime’ as possible. In order to maximise trans prisoners’ access to communal areas such as the chapel, canteen, laundry, showers, telephones, gym and exercise classes they will need to be supervised by the guards. We’ve heard from female prisoners that this takes the form of 1:1 supervision, with guards following them around to make sure other prisoners are ‘safe’. This of course only extends to physical safety; the psychological welfare of women is not being addressed.
Mixing prisoners is considered to be a positive for all.
“ACTION – In order to ensure that the policy fosters good relationships between the high risk transgender women on the unit and the other women in HMP Downview, staff at HMP Downview will continue to include the women on E wing in the normal regime as much as possible”.
Public Sector Equality Duty requires the prison service to ‘foster good relations’ between groups with different protected characteristics. In this instance it means the prisoners who are trans (the high-risk male-born prisoners) and prisoners who are not trans (the women).
There is no acknowledgement that women might not actually want to mix with high-risk males, and that this enforced mixing may actually foster ‘bad’ relations. A high number of women in prison have suffered male violence and/or have a history of sexual abuse from males and may not wish to be alongside males with a history of violent or sexual offending against women.
Instead the policy promotes the idea that mixing will foster good relations. Is it right to expect women to have ‘good relations’ with violent males, some of whom are sex offenders?
The Equality Impact Assessment was written after E-Wing opened.
Fair Play For Women had our first contact meeting with officials from MOJ and HMPPS in October 2018. Repeated engagement continued for the next eight months while the new transgender policies were being developed. During this time clear and documented concerns were expressed about inadequate stakeholder engagement, breaches of the Public Sector Equality Duty, lack of a trauma-informed development of its new policy and challenge of MOJ’s legal interpretation of single sex spaces in prison. This work has formed part of our witness statement provided to the court for the judicial review of transgender prison policies, including E-wing.
This Equality Impact Assessment was not available when E-wing first became operational in March 2019. We had asked to see a copy and was told “there are no novel elements to the accommodation at Downview so there was no Equality Impact Assessment.”
We then asked for a meeting to discuss the new policies which happened on 2nd May 2019. This meeting is noted in the subsequent Equality Impact Assessment as “feedback from conversations with key stakeholders”. However, this was not a consultation meeting designed to obtain feedback or expert advice. It was simply a preview of the finalised guidance ahead of publication. There was no opportunity to read the guidance in any detail.
Impact on the nine protected characteristics in the Equality Act
Equality impact assessment for SEX: “Wing is for high risk transgender women only. The unit is aimed at keeping all women, both non-trans and transgender, safe”.
There was no mention of any adverse impact on prisoners who share the protected characteristic of the female sex. Women – other than transwomen – were not considered. Instead the emphasis was on trans-identifying females with a GRC who share the protected characteristic of the male sex, and whether it was fair for them that they were not being put into the male prison estate, since trans-identifying males with a GRC were being put into the female prison estate. This is a classic example of how the needs of women are erased by the Gender Recognition Act. Since these high-risk male-born trans prisoners legally share the protected characteristic of the female sex with the women who may be at risk from them there is no way to distinguish between these two groups in the assessment.
This means that nowhere within the Equality Impact Assessment for this policy was it noted that women prisoners could be adversely impacted by this policy because they were born female and the high-risk transgender prisoners were born male.
Despite the obvious pregnancy risk as a result of mixing both sexes, through either consensual or non-consensual sex, it is only mentioned once in the EIA as a throwaway line in the impact assessment regarding sexual orientation.
” a transgender woman in the women’s estate who is attracted to other women may find her relationships come under extra scrutiny compared to relationships between non-trans women. There may be legitimate concerns regarding pregnancy etc. but also a potential risk of bias and unfavourable treatment if risks aren’t assessed holistically.”
Here they consider the potential bias and unfavourable treatment that may occur towards transwomen who are ‘attracted to other women’. They highlight the concern that a transwomen ‘may find her relationships come under extra scrutiny’ compared to relationships between lesbian women. They mention there may be ‘legitimate concerns regarding pregnancy’ but risk should be assessed ‘holistically’. Remember, here they are talking about sex between a female prisoner and a male-born prisoner who is too dangerous to be allowed to mix with women unsupervised. No real consideration is given to the risks posed to the woman in that dynamic or the possibility that the sex is non-consensual (rape).
Conclusion
The information contained within this Equality Impact Assessment for the specialist transgender accommodation block at Downview women’s prison reveals serious problems with the way any adverse impact on women in prison was evaluated.
The MOJ’s transgender prison policy, including the housing of high-risk male-born prisoners on the female estate, is now the subject of a Judicial Review. Evidence was heard in the High Court on 2-3rd March 2021. Fair Play For Women submitted witness statements detailing our engagement with with MOJ and HMPPS over the course of the last 2 years. If the court decides that the policy does not adequately consider the needs and rights of women in prison the policy will be quashed. We now await the court ruling.
Why is a female prisoner suing the UK government over its policy on transgender prisoners?
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