My Lords, I support the amendment moved by the noble Lord, Lord Blencathra, this evening. I do so not just because I have attached my name to it, but because I emphatically agree with what it seeks to achieve. Anyone who knows me is aware that I am an advocate for a strong law-and-order approach to crime; for those who break the law, the punishment must fit the crime—which often includes imprisonment. This amendment, however, is trying to protect the dignity of female prisoners.
The female prison estate is currently run as a mixed-sex institution. This is because the Ministry of Justice’s policies permit prisoners of the male sex who identify as transgender and fulfil certain criteria, resulting in them being held alongside vulnerable female prisoners. Some of these prisoners have been convicted of the most serious violent and sexual offences and are biologically male.
It surely follows that women’s prisons should be separate-sex facilities to preserve, as far as reasonably possible, the safety, dignity and privacy of women in prison. Since the Corston report in 2007 it has been acknowledged throughout the criminal justice system that women in prison exhibit patterns of vulnerability that distinguish them both from women in the wider community and from male offenders. It is also worth noting that female offenders report disproportionately high rates of previous experience of violent and sexual abuse, and experience high rates of mental health problems.
Where women in prison have been victims of violent and sexual assault, prison is often the very first time they can be confident that they will be away from their abusers, who are usually men. I strongly contend that, where women in prison have been victims of sexual and violent abuse at the hands of males, the presence of any offender of the male sex may have an inherently traumatising effect, regardless of the nature of the offence committed.
It is the Ministry of Justice policy—namely, The Care and Management of Individuals who are Transgender —that permits prisoners of the male sex to be housed in the female estate. The policy states that all male prisoners who identify as transgender and who are in possession of a gender recognition certificate must be allocated to the female estate. This is irrespective of any conviction, offending history, risk profile or anatomy, including those who are high-risk prisoners and those convicted of violent and sexual offences against women.
I too was going to refer to the judicial review that was brought in March 2021, but the mover of the amendment has adequately covered that, so I will refrain. However, I shall again emphasise one line: while the policies were found not to be unlawful, it should be said again that the judgment acknowledged the negative impact of the policies on women in prison.
Furthermore, there is no requirement under the Gender Recognition Act 2004, if people fulfil certain criteria, for them to have surgery or medical treatment to obtain a GRC. It is a fact, as has already been referred to, that GRCs have been obtained in prison by males convicted of violent and sexual offences who have been transferred to the female prison estate. The latest data available on the number of male-sex prisoners
who identify as transgender dates back to 2019, but back then it was 11 in number. I understand that new data will be available to be released, or at least is expected to be released, this month. Forcing women to share accommodation with prisoners of the male sex, particularly where those prisoners have been convicted of violent or sexual offences, arguably engages Article 3 on the right not to be subjected to inhuman or degrading treatment or punishment.
I urge your Lordships’ House to support this reasoned and sensible amendment, which is clearly intended to respect female prisoners, including their rights and dignity. Not to do so could be interpreted as not caring how female prisoners end up. Indeed, the conditions that they are subjected to could be construed as part of their prison sentence—which of course they are not, and never should be.