My Lords, this amendment relates to the management of transgender prisoners. The result of the amendment would be that transgender prisoners would “ordinarily”—and that word is used twice in the amendment—be held in a prison matching their sex as registered at birth. I will come back to that word “ordinarily” later on.
I should first record my sincere thanks to the noble Lord, Lord Blencathra, for his time. I am pleased that he found the teach-in with officials from the MoJ and HMPPS to be helpful. I am grateful also that my noble friend Lord Cormack and the noble Baroness, Lady Fox of Buckley, were able to attend the teach-in. I am conscious, from what they said then and this evening, that I did not persuade them at that time. I am not sure that I am going to persuade them in the next few minutes, but I am going to try.
I am not proposing to refer to anything said on Twitter. That is despite the fact that I think I am one of the few ministerial twitterers—or is it tweeters?—around. My tweets have become a lot duller since joining the Front Bench, but I can say that on this subject Twitter exhibits heat and no light whatsoever. I am grateful for the relative safety and sanity of your Lordships’ House.
Under the amendment, transgender prisoners who are not held with prisoners matching their sex as registered at birth would be held in separate accommodation such that they have no contact with people of their acquired gender. That is the inescapable result of the amendment. I suggest that it is unnecessary. Transgender prisoners can already be held in prisons in matching their sex as registered at birth where this is assessed as appropriate. In practice, the vast majority of transgender prisoners are already held in prisons matching their sex as registered at birth. The small number who are held otherwise have been through a rigorous multi-disciplinary risk assessment process. There is already provision, as I will explain in a moment, for transgender prisoners to be held separately from other prisoners of their acquired gender if doing so is deemed necessary.
We take the allocation of transgender prisoners extremely seriously. This is a subject which, as the last hour or so has demonstrated, arouses a lot of controversy and passion. But the approach we have put in place allows us to strike an appropriate balance—the noble Lord, Lord Cashman, put his finger on that as the right word, as it is a balance—between the safety, rights and well-being of transgender prisoners and that of all other prisoners in the estate.
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I can therefore assure the noble Baroness, Lady Fox of Buckley, that we do not look at the position of the transgender prisoner only in this context. The officials who are managing the risk know the risk which can be managed, for example, in the women’s estate. They are balancing the risks and working out what the best solution is. I can also assure my noble friend Lady Meyer that neither I nor other Ministers in the department give in to what she referred to, if I took it down correctly, as noisy and modish pressure groups. If I did that, I would not be able to take much of the Government’s business through your Lordships’ House.
Under the Government’s current policy, transgender prisoners are initially allocated to a prison matching their legal gender. As the noble Baroness, Lady Barker, set out, this is the way we do it. For most transgender prisoners, this is the same as their sex registered at birth. Most transgender prisoners then remain in a prison matching their sex as registered at birth. Transgender prisoners who have not changed their gender by obtaining
a gender recognition certificate are held in a prison opposite to their sex registered at birth only where that is judged appropriate by a multidisciplinary complex case board, which considers all relevant factors. Transgender prisoners who have changed their legal gender can still be moved to a prison matching their sex as registered at birth where a case board judges that to be necessary to manage risk.
To come back to the words of the amendment, it is not clear what “ordinarily” would mean in practice for those making decisions about transgender prisoners. Our current approach is robust and over 90% of transgender women in prison are held in the men’s prison estate. I respectfully agree with my predecessor, if I can call my noble friend Lord Faulks that: this is a nuanced and difficult matter. I also agree with my noble friend Lord Herbert of South Downs that this ought to be a matter not of ideology but of putting into place systems which actually work. We believe that our systems work.
The second part of the amendment suggests that a facility be created to hold transgender prisoners who are not to be held in a prison matching their sex as registered at birth separate from other prisoners. In fact, the current policy allows for this: a small part of HMP Downview, known, as the House has heard, as E Wing is used for this purpose. It allows transgender women with gender recognition certificates to be held separately and have supervised contact with other women only where a complex case board has deemed this necessary. Such a board can also recommend that a transgender woman with a GRC can be held in a prison matching their sex at birth where their risk is considered too high to be held in E Wing. All other high-risk transgender women without GRCs are placed in the male estate.
However, as we have heard, the amendment would mean placing all transgender women in the women’s estate in E Wing, even where the board had assessed them as posing a level of risk which could be managed in the women’s estate. We do not think that would be fair or appropriate, essentially for the reasons set out by the noble Lord, Lord Pannick—and, just to correct the record, when he referred to the Home Office he would now, obviously, mean the MoJ. To pick up a word which I think was used, it would be cruel to do so. I agree with the approach of the noble and learned Lord, Lord Hope of Craighead, who said that we have to be alive to all the relevant distinctions and various issues which transgender prisoners present with, and, as the noble Lord, Lord Cashman, put it, we are alive to the risk of suicide.
I appreciate my noble friend’s long-standing concerns in this area. I accept that we did not always get it right in the past. Prior to the strengthening of our approach in 2019, there were a small number of sexual assaults committed by transgender women in the women’s estate. However, we learned the lessons of that and since 2019 there have been no such assaults.
I want to make another point: even if, God forbid, there were such an assault, that would not necessarily mean that the policy was wrong. Regrettably, there are assaults in prison not infrequently, so I am not going to lay my hat on the line and say that as soon as we have an assault that means the policy is not working;
that would also be a fundamentally mistaken approach. We consider the risks and put an appropriate policy in place.
To pick up the specific questions put by the noble Baroness, Lady Falkner of Margravine, it is not unlawful to hold trans women with GRCs in the men’s estate; there are already powers to do so. Trans women are routinely held in the men’s estate and trans men are routinely held in the women’s estate.
I think I have answered all the questions that have been put to me so I shall end on this point. A number of noble Lords have put to the Government that there is public disquiet about this issue. We have put in place a policy that we think provides for the proper management of transgender prisoners and the proper protection of all women in the women’s estate. I am not going to make any apology for putting management and protection first and what is said to be public opinion—whether on Twitter or anywhere else—second. I am conscious that also in our prisons are people who have been found guilty of the most heinous crimes, such as sexual violence against children, and we do not manage those prisoners by the way that public opinion might suggest they be managed. A proper criminal justice system takes account of the considerations that I have set out. For those reasons, I invite my noble friend to withdraw the amendment.