A prisoner who was allegedly sexually assaulted behind bars by another inmate has challenged the Ministry of Justice over its policy on placing transgender women in women’s prisons.
The long-anticipated test case opened at the high court in London on Wednesday, but was adjourned following a dispute over the late disclosure of departmental documents.
The claim has been brought by lawyers on behalf of an unnamed woman who served nearly four years in prison.
In August 2017, while in HMP Bronzefield, in Middlesex, she said she was sexually assaulted by a trans woman prisoner who holds a gender recognition certificate (GRC). The MoJ does not accept that there was an assault.
In a skeleton argument released at the start of the hearing, Karon Monaghan QC, for the prisoner, said that MoJ policies “allow prisoners to be accommodated in the prison estate that corresponds to their declared gender identity, irrespective of whether they have taken any legal or medical steps to acquire that gender”.
The policies, she said, seemed to use the terms “sex” and “gender” apparently interchangeably. They govern the “management of prisoners who identify as the opposite gender from that to which they were assigned at birth, rather than with prisoners’ sex”.
The prisoner with a GRC, who allegedly carried out the attack, Monaghan said, had convictions for serious sexual offences against women but was housed in the general population of a women’s prison.
There are about 3,600 women in prison in England and Wales. They were, Monaghan added, “an especially vulnerable group”; 57% of them report having been victims of domestic violence as adults.
The MoJ policies, Monaghan claimed, were discriminatory and erroneously overlooked “permitted exceptions [under the Equality Act] to the requirement that trans women be treated ‘for all purposes’ as in their acquired gender”.
Sarah Hannett, counsel for the MoJ, said in her skeleton argument that the policies “implement a nuanced and fact-sensitive approach” to balancing competing interests. “Any policy in this area is unlikely to satisfy every interested person.”
The MoJ is also dealing with separate applications, she revealed, by transgender prisoners elsewhere in the prison system who were seeking transfers to the general women’s prison population.
Hannett told the court: “The facts on which the claimant relies simply do not demonstrate that she was exposed to a risk of sexual assault … The claimant seeks an order preventing transgender women prisoners with convictions for violence against women and girls being accommodated in the women’s estate, pending a review of the policies.
“That would require the secretary of state to take steps to place all such transgender women prisoners in the women’s estate into the men’s estate without any regard for the individual circumstances of the prisoners concerned. This is … an order that lacks sufficient focus.”
The hearing was adjourned to a date to be fixed to resolve the issue of how much of internal MoJ discussions about the policy should be disclosed. The case may now not come before the high court until next year.