Transgender issues in the criminal justice system
Jane Ryan discusses the specific barriers and risks faced by transgender people in the criminal justice system.1The author thanks Stuart Withers for reviewing a previous draft of this article and contributing to it.
On 8–9 September 2016, a group of human rights lawyers gathered in Athens to participate in the Transgender Europe (TGEU) legal network conference. TGEU2www.tgeu.org
is a human rights organisation that has been at the forefront of transgender rights since its inception in 2005. The conference focused on asylum (with the UK Lesbian & Gay Immigration Group (UKLGIG)3http://uklgig.org.uk/
leading the way) but also heard about a range of other important issues for trans4Trans/transgender are used interchangeably as an umbrella term for people whose gender identity differs from their birth-assigned gender.
people including legal gender recognition, health, hate crime and criminal justice. I spoke about the latter within a UK context and was surprised to see similarities in the experience of trans people in criminal justice settings in the UK, Turkey, Malta and beyond.
Colleagues from Turkey attending the TGEU conference described the appalling European Convention on Human Rights (ECHR) article 3 cases concerning the murder of trans activist Hande Kader5www.theguardian.com/commentisfree/2016/aug/23/murder-transgender-lgbt-hande-kader-turkey
and mistreatment by police of the trans community. While abuse in the UK is fortunately not as horrific, my clients have reported transphobic attitudes from police and prison officers, in relation to searching and use of force during arrest, and the use of segregation in the prison estate.
A central theme to emerge from the discussion was that transgender people within the criminal justice system face specific barriers: decisions are subject to discretion by state officials; information about rights may not be available; healthcare may be denied; mistreatment may not be taken seriously; and gender identity may be challenged, disbelieved or seen as a security ‘risk’. All of these problems continue to persist in countries which are signatories to the ECHR despite the European Court of Human Rights (ECtHR) ruling in Identoba and others v Georgia App No 73235/12, 12 May 2015, which found for the first time that ‘gender identity’ was a protected characteristic under ECHR article 14. It has long been recognised in English law that ‘gender reassignment’ is a protected characteristic under equalities law: Equality Act (EA) 2010 s7. This is now arguably an outdated term, which no longer adequately expresses the social and political landscape of those who identify as trans. Despite the progress in Identoba, there is ongoing evidence of discrimination against trans people within criminal justice systems and little consideration of implementing the decision, which affords additional protections to trans people.
In the prison context, the UN Special Rapporteur on Torture reported as long ago as 2001 that transgender prisoners (particularly trans women) are at ‘great risk’ of physical and sexual abuse (Report of the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment, A/56/156, 3 July 2001, para 23). Abuse by staff and other prisoners, the obligation to take reasonable preventative measures and failure to investigate allegations of such abuse engages ECHR articles 3 and 14. Prisoners experience an additional hurdle in reporting abuse as they cannot simply pick up a phone or report directly to the police; therefore, states must take ‘necessary preventive measures to preserve the physical safety and well-being’ of prisoners (Sizarev v Ukraine App No 17116/04, 17 January 2013, para 112).
Despite this, reports of transphobic abuse are common. The deliberate disclosure of transgender status has been found to breach ECHR article 8 per se (B v France App No 13343/87, 25 March 1992); in a prison context where there is a risk of violence, such disclosure may also breach ECHR article 3 (this arises in a case that has been communicated to the Russian government and is currently under consideration by the First Section of the ECtHR: Bogdanova v Russia App No 63378/13).
Segregation, allocation and access to healthcare etc
Trans prisoners are routinely segregated or held on healthcare units (ie, units for people with mental health issues who cannot be accommodated in a normal location). There is a difficult balancing exercise to be undertaken between considering risks to safety and security, the prisoner’s own wishes, and alternative measures such as allocation to smaller units and putting measures in place to tackle transphobic violence and abuse.
In my experience, segregation is often the default position in the UK. Any decision on segregation must be objectively justified, ie, that the measure is pursuing a legitimate aim and is a proportionate means of pursuing that aim. Segregation should be a last resort, and only after the consideration of alternatives (such as moving to a prison that matches gender identity or allocation to a smaller unit etc). As with issues on allocation, there are separate rights relating to the prisoner’s involvement in decision-making, particularly when the segregation is lengthy (the Supreme Court recently set out a prisoner’s procedural rights in relation to segregation in R (Bourgass) v Secretary of State for Justice  UKSC 54). An analogy can be drawn between segregation on the basis of gender identity and segregation on the basis of sexual identity, the latter of which has been found to be unlawful (X v Turkey App No 24626/09, 9 October 2012).
Strongly linked to segregation and risk management is allocation within a system based on the gender binary. The allocation of prisoners within the UK is based on legal gender recognition. This raises significant issues as many trans people do not have a gender recognition certificate (some may argue that having a state panel determined gender is archaic), there are obvious difficulties in applying for a certificate while in custody and it certainly runs contrary to the principle of selfdeclaration found in the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, which are now a decade old. By contrast, the Maltese prison policy accepts self-declaration as the foundation of legal gender recognition as the state accepts self-declaration.6http://tgeu.org/malta-prison-policy-august-2016/. Most notably, Ireland turned the principle of self-declaration into legislation in the Gender Recognition Act 2015.
In my view, the transgender prison policy in the UK is wholly inadequate regarding when a decision is made about whether to transfer a transgender prisoner to the establishment that matches their gender identity and at what point a case conference to discuss the decision is necessary. Without careful consideration of the timing of when such a review or decision should take place, the policy leads to a real risk of transgender prisoners being subject to discrimination, harassment and victimisation contrary to the EA 2010 and of breaches of ECHR articles 3, 8 and 14. In Scotland, for example, a case conference to determine allocation and management must be held within seven days of reception to custody. Recently, a judge recommended a trans woman be held in a women’s prison because of the risk of abuse and mistreatment in male prisons.77
In immigration detention, the new Home Office policy, Adults at risk in immigration detention (September 2016), classes transgender and intersex people as a group that should be considered at risk (and therefore presumptively unsuitable for administrative detention). The caseworker guidance states: ‘An individual who has transitioned, or is transitioning, from one gender to the other may be at particular risk of abuse and mistreatment from other detainees. The same could apply to a person who is intersex’ (page 6). If this is the position for immigration detainees, it appears to be a strong recognition of the risks trans prisoners also face. Further support is found in OM v Hungary App No 9912/15, 5 July 2016, where the ECtHR found that the detention of a gay man in immigration detention was unlawful partly on the basis of the abuse he faced. The court commented: ‘In the present case, the authorities failed to … [consider] the extent to which vulnerable individuals – for instance, LGBT people like the applicant – were safe or unsafe in custody among other detained persons, many of whom had come from countries with widespread cultural or religious prejudice against such persons’ (para 53).
Another problem encountered by transgender prisoners is the denial of gender-affirming products. The English and Welsh policy on The care and management of transsexual prisoners (Prison Service Instruction (PSI) 07/2011) provides that trans prisoners should be able to live in their affirmed identity regardless of which type of prison they are in. However, prisoners frequently report having to battle for basic items and face a challenge as ‘security’ issues outweigh equality rights. This is shown in the regressive decision of R (Green) v Secretary of State for Justice  EWHC 3491 (Admin), where the court found there was no discrimination in refusing gender-affirming items such as a wig, tights and a prosthetic vagina.
Another core problem is adequate healthcare treatment: referrals to gender identity clinics are slow; hormone treatment is interrupted by imprisonment; and prison healthcare may be inadequate to respond to specific gender-affirming issues. A case currently before the ECtHR, DC v Turkey App No 10684/13, in which TGEU is intervening, concerns the refusal to fund gender reassignment treatment. Bogdanova v Russia (see above) is another case where a transgender prisoner’s health was jeopardised by the prison’s refusal to provide necessary medical treatment including the continuation of hormone therapy.
Aside from treatment there are also questions about whether trans prisoners have equal access to the core functions of imprisonment. There is support in European and international law for the principle that all prisoners be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved. A real opportunity for rehabilitation is ‘a necessary element of any part of the detention which is to be justified solely by reference to public protection’ (James, Wells and Lee v UK App Nos 25119/09, 57715/09 and 57877/09, 18 September 2012, para 209). This means being given reasonable opportunities to address offending behaviour and risks; a failure to provide reasonable opportunity may breach ECHR article 5(1) as detention becomes arbitrary (ie, there is no causative connection between the ground for the deprivation of liberty and the place/conditions of detention).
Transgender prisoners may be prevented from attending offending behaviour courses necessary to demonstrate risk reduction because of allocation (ie, courses only being available in certain prisons), risks to themselves from other prisoners, or other reasons (see, for example, R (H) v Secretary of State for Justice  EWHC 1550 (Admin)). Procedures relating to the release of prisoners that appear to operate in a discriminatory manner may raise issues under ECHR article 5 taken together with article 14 (Rangelov v Germany App No 5123/07, 22 March 2012 and Clift v UK App No 7205/07, 13 July 2010, para 42).
Review of transgender prison policy
Following the tragic deaths of Joanne Latham and Vikki Thompson (both trans women in male prisons) in 2015, the then justice secretary Michael Gove announced a review of PSI 07/2011. It is 11 months and one justice secretary later, and neither the review nor the new PSI has been published. I submitted a freedom of information request for them in September 2016, which was refused on the grounds that both would be published in the autumn and that the conclusions had already been published.
The latter point is not strictly true. The Government response to the Women and Equalities Committee report on transgender equality (Cm 9301, July 2016) stated that: ‘The review concluded that treating offenders in the gender which they identify with is the most effective starting point for safety and reducing reoffending, where an assessment of all known risks can be considered alongside the offender’s views’ (page 24). While it is welcome that the government appears to recognise the starting point should be accepting gender identity, as yet no new guidance has been published on allocation, management (regarding selfdeclaration), segregation, gender affirmation, etc.
New guidance has, however, been published (in force from October 2016) in relation to searching prisoners, with specific guidance on the search of trans prisoners (Searching of the person (PSI 07/2016)). However, the use of search powers continues to be organised on the basis of whether a trans person has a gender recognition certificate. The guidance also refers to prisoners being treated for ‘gender dysphoria’ and to whether trans prisoners are pre- or post-operative. If this provides a glimpse into future general policy on trans rights in prison, then that promised future is bleak, and little will have been learnt. The government’s delay is unwarranted and while it sits on findings of the substantive review, trans prisoners’ rights continue to be violated. ■