BENT BARS PROJECT
P.O. Box 66754 London WC1A 9BF
www.bentbarsproject.org
bent.bars.project@gmail.com
We would like to preface our response by saying that as far as we are aware there is no reliable information to indicate the number of trans* people in the general population in the UK (Hunter, Bishop and Westwood: forthcoming) let alone in prisons. Even if such information were formally collected in prisons, it is likely to be unreliable given the fears that many trans* prisoners describe when contemplating ‘coming out’ in prison. Further, while definitions of who ‘qualifies’ as trans* continue to alter and expand, to date, such changes in definitions not been matched by any official expansion of trans* identities beyond the binary recognition allowed some trans* people by the Gender Recognition Act (GRA). We understand that the process of updating PSI 07/2011 on ‘The Care and Management of Transsexual Prisoners’ (which expired on the 14th March this year) is on-going, but feel that any changes should be informed by the concurrent review taking place into the effectiveness and reach of the GRA. The position of the Bent Bars Collective is that the GRA is a flawed piece of legislation and that in line with countries such as Ireland, Argentina, Denmark, Sweden, Norway, and Malta, the UK should allow its citizens to self-declare their sexgender identity.
Our project is in regular and direct contact with LGBTQ prisoners and the evidence we present here is based on the experiences they have described to us as well as judgements from law cases.
We understand that recognition and protection for trans* prisoners varies throughout the prison estate. Prisoners in some establishments report being supported and recognised and being allowed to express their identities in line with PSI 07/2011. Others are systematically denied the right to wear appropriate clothing, misinformed or lied to about their rights and not given access to appropriate medical treatment. In at least one case, a prisoner was led to believe that the prison had been trying to make appointments with the NHS Gender Identity Clinic, only to discover on release that no contact whatsoever had been made by the prison at all. This example is of a prisoner who was already transitioning before sentencing but the case for prisoners who want to begin transition while serving their sentence is even more difficult. Even accessing the psychological profiling that all trans* people accessing NHS services have to go through is reported as being difficult for some prisoners and impossible for others.
Some prisoners report that they are allowed to live in their acquired sexgender roles within the prison estate, but that this often requires considerable effort and persistent action on the part of the prisoner. One prisoner, currently in their third prison, has only been allowed this in their most recent location, previously having been denied ‘due to the nature of [their] crimes’. Other prisoners report not being given access at all.
We have no systematic knowledge of where trans* prisoners are located within the prison estate, though we have been contacted by trans-identified prisoners from a number of institutions across England, Wales and Scotland. We are aware that there are a number of trans* prisoners housed together on the Isle of Wight who have a support group on their wing. There are trans* prisoners who are active in LGBT(Q) support groups in other parts of the estate. But knowledge of specific numbers and locations is at best patchy and unsupported. Many trans* prisoners avoid ‘outing’ themselves, particularly where they are in inappropriate sexgendered facilities due to the often oppressive and discriminatory environments inside. We regularly receive correspondence from prisoners who report that they are afraid to ‘come out’/disclose their trans* status and we suspect that there are others who do not contact us at all for fear of being outed (since correspondence is regularly screened by prison authorities). This is equally true of LGB prisoners.
Some trans* prisoners are known in prison by their chosen names while others are not and we write to them with a different name on the envelope to the one we use in their letters. This simply reflects the institutional inconsistency referred to above. On a more personal level, prisoners report different levels of treatment by prison officers, some of whom use the chosen name consistently and others who are reported to deliberately mis-name and misgender trans* prisoners even when their chosen names have been recognised by their institutions. As name and pronoun changes are such a fundamental part of a transition process, such actions are particularly abusive of people who are already in particularly vulnerable situations.
We are unable to make specific comments on the searching of trans* people in prison beyond noting that the systemic inconsistencies referred to above all, likely apply in cases of searching as well. With regard to bullying and sexual assault of trans* prisoners we have received reports of verbal abuse from other prisoners and guards and in some cases threats of physical and sexual violence. Reports of the fear of bullying and assault are common in correspondence we receive. And of course fear is one of the main reasons that prevents people feeling safe enough to disclose their identities in the first place.
We want to comment about the recent case of Tara Hudson, a trans woman who has undertaken multiple corrective interventions during her transition over six years and who presents and is embodied as female*, although her documentation hasn’t been changed and she doesn’t have a GRC. That being the case she was incarcerated in all-male HMP Bristol before her case gained publicity, which resulted in her being moved to HMP Eastwood Park, an all-female facility. Her placement in an all-male facility, because she didn’t have a GRC, was in line with the ruling in the case of R (on the application of Green) v the Secretary of State for Justice [2013] EWHC 3491 (Admin). In that case, the ruling found that: ‘The claimant is a man seeking to become a woman – but he is still of the male gender and a male prisoner. He is in a male prison and until there is a Gender Recognition Certificate he remains male […] Male to female transsexuals are not automatically entitled to the same treatment as women – until they become women’ (2013).
That Tara’s campaign was successful is of course a positive result for her but much of the campaign focused on the extent of her transition and her appearance and was very individuated. Her case highlights the inadequacy of the regulations for trans* prisoners, which effectively say the provisions of PSI 07/2011 based on the Equality Act are only applicable to prisoners who already have a GRC. Yet the ability to acquire a GRC is extremely difficult in prison. In the case of Green noted above, one of the contentions was that she couldn’t apply for a GRC because she couldn’t prove she had been living in role or the required two years due to the restrictions placed on her by the prison regime. The ruling in Green largely allowed derogation of the PSI 07/2011 on security grounds, which in our view, were questionable..
Thus we remain in a situation where trans* prisoners are routinely discriminated against. Part of this discrimination occurs because cissexist assumptions are made about the validity of trans* identities on the basis of the binary normativity of people’s appearance and expression, and of their progress through the discriminatory system of legal gender recognition. That this is worse in some institutions than others does not ameliorate the fact that the prison system as a whole is structurally discriminatory towards trans* prisoners. Any new regulations need to take account of more contemporary understandings of the validity of trans* people’s lives and the importance of allowing trans* people to self-identify / self-declare their identities.
Finally we wish to raise the important issue of people who identify as neither female nor male, and whose experiences are often overlooked or excluded from policy discussions of trans* issues (particular with respect to the GRA and PSI 07/2011). We would like to emphasise that any new guidelines pertaining to trans* prisoners should take into consideration the needs of non-binary identified people, who are also subject to discriminatory treatment, harassment and abuse, but who have even less rights and protections in prison than those with a GRC.
The Bent Bars Collective
October 2015
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