This isn’t really something that I’d be happy running with myself as don’t really know that much about the topic, but based on a comment posted by Zoe Brain in an earlier blog post, I included a question about Intersexed prisoners in a Freedom of Information request I was submitting anyway. Someone more active with this sort of thing may want to take an interest in the response I received, so I thought I’d throw it out there…

I’d asked if prison service guidelines on “transsexual prisoners” were intended to include intersexed prisoners too. The answer – or non-answer – is interesting as it leads me to believe the Prison Service Equalities Group don’t know themselves. All they could do was refer me (Twice, I asked for a review the first time) to the Department of Health!

They did point at their definition of Transsexual, which states it includes anyone “who lives or proposes to live in the gender opposite to the one assigned at birth…” and that they “…may or may not have been diagnosed with gender dysphoria”. (My emphasis)

This sounds like a good thing from the outset, in that you don’t need to have a diagnosis of gender dysphoria (Which as I understand it, someone Intersexed who has “transitioned” from their gender-assigned-at-birth would not have) to get some protection under this policy. The downside is that you’re not fully covered unless you have a GRC, which you can’t get without the gender dysphoria diagnosis, so it sounds as if the policy probably isn’t that good after all…

(Style question: Is “Intersexed prisoners”, capital I and including the “…ed” correct for UK usage?)

Prisons and criminal law seem an eternally popular topic whenever I blog about them, attracting more readers and more retweets than almost any other topic. It’s probably not a good indication of the way Trans people feel about society as many of us are only too aware that we’re eternally only one prejudiced police officer away from a spell in prison, even when we are the victims.

This time though, it’s nothing bad at least.

Well, nothing that’s surprisingly bad.

Green MP Caroline Lucas asked a written question in Parliament (Hansard link) to find out who the Ministry of Justice had consulted on their new guidance. The answer was interesting, a little disappointing but perhaps not surprising: Asides from QUANGOs, government departments and those involved in running/inspecting prisons, it was just Unions, (Possibly including a:gender, but I fear not) the Gender Trust and the Beaumont Society.

For those not familiar with the Beaumont Society, it’s an organisation primarily designed to support crossdressers, not people who have actually transitioned. (Although many of it’s members do go on to transition, as is inevitable with such a group!) So, relevant organisations seem to have included, err, the Gender Trust, who were apparently selected because they “asked to be part of the consultation” or “on the basis of potential interest in the Instruction”.

It seems the Ministry did not publicly advertise the consultation, failed to mention any consultation in response to a Freedom of Information request and don’t consider that Freedom of Information request or a follow-up letter (To which I have not received a response) specifically asking about a consultation to be an expression of interest? How about prior work and submissions on the topic from both GIRES and Press For Change?

Does the Ministry of Justice and Ken Clarke actually care what we think?

Didn’t think so.

P.S. Brownie points, or the political equivalent, to whoever from the Green Party is briefing Caroline Lucas on Trans issues as you’re clearly doing an effective job. We need people doing this in all political parties. (Labour Party and Conservative Party members take note!)

For those interested in reading the actual new guidance, it’s available on the Prison Service Web Site now. And for those for whom this is all TL;DR, the summary is: It’s generally a good document that falls into the two common traps with such things. Firstly, the assumption that the NHS is always right and secondly, that you can magically determine someone is trans just by looking at them without ever making a mistake.

I shall start, which is all too common, by correcting two errors that have appeared in the press. Firstly, this guidance is from the National Offender Management Service (NOMS) and only bears the Ministry of Justice logo because NOMS is part of the MoJ. As a result, it does not apply in Scotland or Northern Ireland. It has been pointed out to me by one reader that when I’d previously suggested there was draft guidance in place in the case of the trans woman in a Scottish jail, I was incorrect as the draft guidance doesn’t apply there.

Secondly, this does not apply to “cross dressers”, “transvestites” or any other term the Daily Mail might want to use to stir by imply it’s related to anything other than gender dysphoria, a recognised medical condition. (I have no idea if there’s a possible Press Complaints Commission complaint in there, but I suspect not)

Beyond that, as I suspected much of what is in the new guidance isn’t news as it doesn’t vary much from the draft guidance, which I’ve written about before. Oh, and, surprise surprise, the Daily Mail have written about before too so it’s not new to them either.

It has the same problems as before, with an effective ban on treatment while on remand waiting trial. However, other areas have improved greatly and that this area has not changed makes me suspect that there is a genuine logistical problem here rather than a lack of desire to fix things. (The average time spend on remand appears to be about 2 months) There’s also the assumption that a prisoner be held in the prison appropriate to their “legal sex”, i.e. based on presence of a GRC but this is much weakened compared to previous drafts and there is much more scope for someone to be transferred early.

Interestingly, there is already a provision for the most problematic female prisoners to be held in male prisons under certain guidelines and this is mentioned, although only on the understanding that it can only be used for transwomen in the same way as it is for ciswomen. This hopefully means that any claims that a violent prisoner might transition to cause trouble can be easily rebuffed, as they can end up back in a male prison. (Presumably alongside the most problematic female prisoners, which probably isn’t much fun)

Transmen can never be refused a request to relocate into a male prison, although it is explicitly acknowledged that many, in particular those who have not undergone full bottom surgery, may prefer to remain in a female prison due to the risks. A completely non-scientific survey of a handful of trans men who are friends of friends and have been in prison suggests that most trans men would choose to remain in female prisons. Presumably they could still be transferred against their wishes into a male prison in the same way that a cis woman can, but that isn’t addressed.

But one item jumps out as immediately problematic. There is a general ban (Section 1.10) on new or continuing private treatment that has to be for “demonstrable clinical reasons” and not based on “uninformed personal choice”. I suspect the majority of trans folk who end up in prison simply cannot afford private treatment anyway, but for those than can I suspect “the NHS won’t treat me” won’t be regarded as a good enough reason. In general, although a good policy, the document has a slightly confused mix of ideas about NHS versus private treatment, long-term transitioners and the practicalities of the laws and could probably do with a couple of cycles of revision.

In terms of treatment, the one year real-life-experience guideline prior to surgery is mentioned, but given there’s little possibility of private treatment, two years is the norm in England, with Wales being pretty much never. It goes on to say that it’s “essential” that someone planning on surgery undergo counselling for the “up to two years” wait. This fails on two counts. Firstly, you’ll be very lucky to get surgery within two years of commencement of RLE on the NHS. Secondly, the need for counselling is a medical decision. How essential it is in an individual case is a medical decision and does not belong in a Prison Service document.

For the long term transitioned, there’s an assumption that you’ll still be “high risk” and need special care. Personally, if I ended up in a prison now then I would not expect (Nor particularly want, I guess) that sort of special treatment.

And finally, there are some good points on the Gender Recognition Act, stating that staff should ask for a birth certificate and that you can’t request a GRC if someone was born in the UK. (Although one is acceptable if produced one instead of a GRC) For those that can’t produce a BC or GRC, you’re assumed to be your “birth gender”, although there’s no discussion of how to establish “birth gender” and as with police codes on searching, it could end up with some cis women, particularly lesbians, being treated initially as male if they can’t produce a BC as any physical examination to establish gender is, quite rightly, banned. Apparently, you are allowed to ring the Gender Recognition Panel and give them your “password” to allow them to reveal details to the Prison Service. I have no idea what my “password” I supplied when applying for a GRC is and I suspect I’m not alone in this and it still doesn’t help cis folk mistaken for being trans.

“Women to be treated like women in prison” probably isn’t a newsworthy headline to most people or, in fact, a particularly surprising statement. But as some have probably seen, the Telegraph and the Daily Mail reported yesterday that the Ministry of Justice have “published” a guide on trans prisoners. (Published in quotes because as yet there is no indication of anything new on the web sites of either the Ministry or the Prison Service)

It’s likely the content of the manual isn’t anything new given that the prison service policies are nothing new, so they presumably only warrant a story because the kinds of people who read those papers may have a tendancy to whip themselves up into a righteous foaming indignatation based on the spin presented by the journalists and feel much better about it afterwards.

Without seeing the document there’s not much to say, except to note that the news reports are damning of the idea that trans women can wear their own clothes. This might sound like a liberty, until you check prison service rules. Convicted male prisoners do not get to wear their own clothes, it’s true. However, all female prisoners – either convicted or awaiting trial – do get to wear their own clothes.

So they’re treating trans women just like other women in prison. Fancy that. (The existence of trans men is, of course, something that the press haven’t considered.)

A quiet week for blogging, but I have been sent one item of interest by a reader that I think people may find interesting as it concerns prisons and trans people. In this case, the prison service get it right, but facing are a bit of a backlash via the Scottish Sun in this story, titled “Sex-swap fella in women’s nick”.

In short, The Sun claims there is a pre-op transwoman in prison up in HMP Cornton Vale, Stirling and it’s causing a “storm”.

Exactly what sort of storm isn’t clear, because there are just a couple of comments from “sources” at the jail which don’t quite ring true, stating “We have not been trained to handle this. How are we supposed to search her?” Umm, well, you could try one of the draft Prison Service Orders that we’re told governors have access to. There’s no indication that staff are particularly stormy about this, nor that other inmates even know she’s a transwoman.

In fact, the only attributed source for the story is her brother. If they have a “source” in the jail, I suspect it’s not a prison warder but ancillary staff.

Oddly, they only have a pixellated photo of someone who is presumably the woman, Nichola. I don’t quite understand why they could publish her name but obscure her face. Instead, the largest photo for the story is her brother – I don’t quite see the relevance of that. It’s also not been picked up by any other news outlet, so I have no idea how true any of this is.

Kudos to Stonewall Scotland for some positive comments on the issue. (Unlike Stonewall in England, they do cover Trans issues)

It looks like the Ministry of Justice has a big problem on it’s hands. It doesn’t know why nearly a thousand inmates are even in prison.

Livejournal comments on my last post about sex ventured into the territory of prisoners and how reproductive rights work when there’s nobody about to reproduce with. I looked up prisoner numbers (PDF link to justice.gov.uk) to see how many of them served sentences long enough for this to be a problem and found a wonderful table detailing types of offence. The data is repeated in several places, but the best table is on page 9.

There are 935 prisoners currently in prison listed as “Offence not recorded”. This is separate from “Other offences”. 17 of those were children under 18 but over 14. This is of a total prison population of 71,103 in August 2010, of which 1,222 are children.

One individual who saw this today works for the prison service and his reaction was described as “baffled”. I’ll bet!

There is quite a lot wrong with this story. (Daily Express link, also reported by The Sun and the local paper)

I’m not sure what would typically be an appropriate sentence for such an offence. The way it’s been reported, she’s “got off lightly” but both papers have their own agendas. Transphobic reporting like this isn’t itself news.

But the quotes from the Judge, if accurate, worry me:

I am in no doubt that you have led something of a nightmare existence as a transsexual for the entirety of your life. The result is you have walked something of a sexual tightrope, leading to an extremely sad and depressing existence. The reality is this is your final chance to change difficult areas of your sexuality. You have received Government funding and if I send you to prison I would be sentencing you to a continuation of your sexual nightmare, possibly forever.

Gender and sexuality are completely different, so it sounds as if the Judge knows little of the issues. I would guess this is because they don’t have any information easily available to them when working on cases – I do wonder if the outcome might have been different had the defence solicitor been different or it had been in front of a different judge, which is of course not desirable.

And of course the underlying issue is that the prisons are not set up to handle transgender prisons. If the judge can be convinced it would be a “nightmare” to send someone transgendered to prison, why is anyone transgender in prison?

I shall take a quick break from quaffing Blessed Potions of Healing +1 (Brand Name: Lemsip) and wondering what do with spam sent by a customer in August 2007 that’s just been reported to me to write a quick note to the Secretary of State for Justice about the upcoming guidelines for Trans prisoners.

But first, I shall point out that the last letter I wrote to a government minister was 15 working days ago. Coincidentally, that is apparently the time limit within which that department aims to respond to letters. Hopefully I shall be able to blog tomorrow about the response I’ve received, but given I have not had one yet I’m not that hopeful. Still, I have had a number of emails indicating that the mail is apparently bouncing round between the Department for Education, the Home Office and the Government Equalities Office for reasons unknown to me, so maybe I’ll be lucky and get three separate responses.

Back to the letter:

---

Rt. Hon. Kenneth Clarke MP, QC, Secretary of State for Justice
By EMail

16th December 2010

Dear Mr Clarke,

I welcome the response from your office in relation to a Freedom of Information request (FOI/67805/10) that indicates that long-overdue guidelines on the handling of prisoners with Gender Dysphoria are being drafted and are likely to be implemented early next year. However, I am concerned about the stated timescales as they do not appear to allow for any consultation and I am unaware of any consultation having taken place to date. I would be grateful if you could outline what steps have been taken to consult with the Transgender community to date and if any future consultation is planned before these guidelines come into force.

Whilst I realise that consultation on internal Prison Service guidelines would typically be neither desirable nor necessary, as a community Trans people are often subject to policy stemming from “common knowledge” that is inaccurate and without any evidential base. This is highlighted by problems with the previous draft guidelines (PSO3300) that create a Catch-22 situation where it was impossible to meet the medical or legal requirements for transition and seem to make assumptions about the generic danger of pre-operative Transwomen in female prisons.

I am guessing that the Prison Service and MoJ have LGBT representatives and experts within them. However, although we share many campaigning goals with the wider LGBT community, the issues faced by the Trans community are quite different and such representatives in government departments are typically focused on LGB issues and may have little additional life experience or knowledge related to Trans issues.

Yours Sincerely,

Zoe O’Connell