A recent decision by the Court of Appeal caught my eye because it concerned housing self identified female trans prisoners in female prisons. My interest had been tweaked because I had referenced a similar case in an essay in April 2019. (“Teeny – Weeny” O’Connor ) The facts of this case are that a female ex prisoner claimed that she had been sexually assaulted, whilst in prison, by a trans gender female (biological male). The trans female held a gender recognition certificate (GRC) and had previous convictions for serious sexual offences. (BBC 2/07/21) The plaintiff argued that women prisoners are placed at a higher risk when trans women are allowed to opt to serve their prison sentences in woman’s prison. In strict summary the Court found that the Minister of Justice (MOJ) acted lawfully under the terms of the Equality Acts, especially the Equality Act 2010. The MoJ (Defending) argued the policy pursued a legitimate aim, including “facilitating the rights of transgender people to live in and as their acquired gender (and) protecting transgender people’s mental and physical health”. (BBC 2/07/21) The Court did expand on the main findings in two important ways. Although it found the MOJ actions ‘lawful’ it did say that it may not necessarily be ‘desirable.’
In the first instance the Judge, Justice Holroyde, said that it was the responsibility of the MOJ not only to carry out the terms of the relevant Equality Acts but to assess the risk to the female prison population of taking such actions. As he said, “… the policies require a careful, case group by case assessment of the risks and of the ways in which the risks should be managed … Properly applied, that assessment has the result that non-transgender prisoners only have contact with transgender prisoners when it is safe for them to do so.” According to the women’s rights group, Fair Play for Woman (FPFW), the MOJ does carry out risk assessment by only allowing trans women who are considered ‘safe’ or those who have changed their gender on their birth certificate to transfer to female prisons. Of the second group those who are considered ‘unsafe’ sleep in separate quarters at night and are supervised during the day. The Judge accepted that not only was there a physical risk in this situation but it was traumatic for women to be denied their safe space, especially for those who had suffered abuse in the past. “Many people may think it incongruous and inappropriate that a prisoner of masculine physique and with male genitalia should be accommodated in a female prison in any circumstances. More importantly for the Claimant’s case, I readily accept that a substantial proportion of women prisoners have been the victims of sexual assaults and/or domestic violence. I also readily accept the proposition … that some, and perhaps many, women prisoners may suffer fear and acute anxiety if required to share prison accommodation and facilities with a transgender women who has male genitalia, and that their fear and anxiety may be increased if that transgender woman has been convicted of sexual or violent offences against women.” Lord Justice Holroyde , Spectator 2/07/21
In the second instance, the Judge recognised that rights conferred under the Equality Acts are not infinite but constrained by the rights of others. In this case the interpretation of the MOJ that their responsibility was mainly, “facilitating the rights of transgender people to live in and as their acquired gender ” (sic) Judge Holroyde made it clear that the MOJ, through it’s policies had an equal responsibility to both the trans and non trans women in the prisons.“… the policies permit, and indeed require, the necessary balancing of competing rights.” Lord Justice Holroyde , Spectator 2/07/21.
One disturbing aspect of this case was the absence of reliable statistics. You would have thought that as the issue was a matter of great public interest that the MOJ and the Prison Service would have kept extensive records of numbers of trans woman in the prison population as a whole and those that had transferred to woman’s facilities. It seems that between 2016 and 2019, 97 cases of sexual assault were recorded in female prisons of which 7 appears to have been committed by trans women. The problem is that these numbers relate only to those trans women without a GRC. There are no numbers for those who have a GRC document. (BBC 2/07/21) In my view the Judge made a rather odd comment about the lack of data and the quality of the little that was produced. He said the plaintiffs ‘claims about the risk of sexual assault were a “misuse of the statistics, which… are so low in number, and so lacking in detail, that they are an unsafe basis for general conclusions”.’ (BBC 2/07/21) This seems somewhat unfair as it seems to suggest that the plaintiff is responsible for the provision and quality of MOJ and Prisons Service statistics. It also appears to conflict with his directions concerning the assessment of competing rights as it would be impossible to do this without access to comprehensive data. Fair Play to Women agreed and noted:
We say: without proper data, and without knowing the full extent of the impact on women, how can these competing rights be balanced properly? And when does a female’s right to safety override the feelings of males? Where do we draw that line and who decides? Fair Play for Women
This case raises a number of issues and it reminded me of my earlier essay which focused on the fallacy of social justice which was founded on equality of outcomes. As part of this essay I had made a reference to a case of a self identified trans woman who had demanded and was allowed, to transfer to a woman’s prison. Her name was Karen White and her face and history was featured in a campaign leaflet created by Fair Play for Women, as shown above. The leaflet hasn’t enough space to describe the horrendous record of this person. Let me summarise the criminal record of this woman.
Born – Stephen Terence Wood, Sentenced for two counts of rape, two sexual assaults and one offence of wounding; previous convictions for indecent assault, indecent exposure and gross indecency involving children, animal cruelty and dishonesty. Prosecutor Chris Dunn described White as an “alleged transgender female” who has used her “transgender persona to put herself in contact with vulnerable persons whom she could then abuse.” The Guardian 11/10/18
Even the above record doesn’t give the full story, whilst on remand she admitted an attraction to children and said that she would think nothing of sexually abusing them. It would be difficult to find any creature less worthy of rights under the Equality Acts and yet the authorities upheld them even though the outcome was absolutely predictable.
The Ministry of Justice has apologised for moving her to the women’s prison, saying that her previous offending history had not been taken into account. The Guardian 11/10/18
There will be those who would say that this case is more than two years old and that new procedures have been put in to place since then to prevent a reoccurrence. To those people I would say that the the procedure is still being administered by the same people who criminally put this dangerous predator into close proximity to very vulnerable women. The fact that there is no transparency in the process and that the authorities have done very little to collect data to see whether there is still risk makes me very sceptical about the good faith of the MOJ in this matter.
The Judge, quite rightly, established that there were competing rights in these cases and I will come back to that principle later. However, the framework of the Judgement suggests that there are only two stakeholders in the issue, transgender women and female prisoners. As you can see opposite, Fair Play For Women compiled a report using the woefully inadequate MOJ and Prison statistics and best estimates. The key findings are represented here and a major point is that sexual and violent crimes are typically a male pattern offence, with some 13,000 male sex offenders in Prison against approx 100 females. (FPFW) According to their estimates 41% of transgender inmates are serving prison sentences for sex offenses and if this is correct we can draw a couple of conclusions from this. The first is that there is a third stakeholder in this discussion and that is the public at large. We are able to contrast two different ways of treating sex offenders inside and outside of prison. On the outside we are able to prevent the likes of Karen White teaching at Schools, joining children’s clubs or taking part in any activity that would put her in contact with vulnerable people. Almost uniquely, her record follows her even though she may have served a sentence for her crimes. Her name is recorded on a sex offenders register which is checked each time someone is being vetted for a position involving vulnerable communities and it is a defence against any challenge to the hiring policy of an entity, in these circumstances, if a person on the list is refused a job. Therefore there is a recognised legal presumption that the risk to the community is too high given the rate of recidivism of sex offenders. Why then should a vulnerable population of women in prison be treated any differently?
The Judge in this case talked about competing rights. I would say that the first duty of the Prison Authorities is to the women prisoners basic Human Right of safety, privacy and dignity. In other words these rights are superior to those of the trans women.
FPFW has suggested that 41% of trans identifying women are sex offenders and question the basic assumption that these self identify women have in fact transitioned. They would claim that, ” … transwomen are not like women. Their sexual offending patterns are more in line with other males, and not females. As such, significant risk mitigation procedures must be in place before any trans-identifying male is allowed into a women’s prison.” In the case of those who have a record of sex offenses and who want to move to a women’s prison it should not be unreasonable to apply the ‘Duck test.’ That is,
if she walks like a man, talks like a man, offends like a man and has a man’s genitalia then surely he is a man!
As a first and immediate step any such person should be prevented from making such a move until there is a fully transparent and audited procedure in place.
At this point I would like to clarify that not all transgender inmates want to transfer to a women’s prison and that their position in male prisons is not enviable but it makes no sense to solve one problem by shifting it sideways to create a bigger one. Judge Holroyde has clarified some issues in his judgement but the question posed by FPFW has not been answered, ” when does a female’s right to safety override the feelings of males? Where do we draw that line and who decides?” What sort of tariff did the judge have in mind whilst data is collected by a strangely disinterested authority or, whilst new cases are being brought by female inmates. A rape, a couple of sexual assault’s, perhaps a suicide?
What has to be done? FPFW says that the first priority is to collect data that the authorities can be held accountable for. There must be research conducted by independent bodies into the effects on women of making any changes that may affect their human rights. I think that they will struggle to find academics of sufficient quality who will undertake this. As can be seen by the strength of the push back to any perceived challenge to the trans industry, a genuinely independent study requires people of courage who may find their careers at risk by even questioning the prevailing orthodoxy.
Unfortunately, the authorities have proved that they do not see this issue as a priority and will only act when they are forced to. This means a return to the Courts which, in turn, means that another woman has suffered unnecessarily.
The public discussion has been slow to start and the woman’s prison issue has followed the trans woman in woman’s sports case. These cases are linked but suffer from the same problem. The traditional defenders of woman’s rights have seemingly nearly all retired. Those woman of the 60’s, 70’s and 80’s who marched, chained themselves to railings and burned bra’s are all strangely quiet about the very definition of what is a woman. Those who do stand up for woman rights are labelled as TERFs (trans-exclusionary radical feminist.) and vilified at every opportunity. There are notable exceptions such as Sharon Davies, Martina Navratilova and JK Rowling but it would be a brave person who hasn’t the financial security of these celebrities to risk all for principle. The case of Maya Forstater, who lost her job over her gender critical tweets has been repeated and the threat of retribution has silenced opposition to the trans industry. (See note) However, it isn’t just the fear of financial and career loss that holds back criticism of trans woman in woman’s prisons or, woman’s sport. After all, the warrior feminist of the past claim to have faced far worse in facing the patriarchy.
I would suggest that the difference between the Feminist cause in the 1960’s and now is that todays feminists are in denial about the identity of their true enemy. Second wave feminists evolved from the counter culture wars centred around anti Vietnam war protests. “Feminists often thought of themselves as revolutionaries rejecting a fundamentally unequal and corrupt power establishment in favour of participatory democracy whereby all the voiceless and suppressed could gain a measure of control over their own lives.” (Counterculture) In this battle against Patriarchy they were supported by their revolutionary brothers and sisters who wanted to breakdown the existing structure and create a new order. For a while this disparate movement focussed around the war in Vietnam and the campaign for woman’s rights. After all, they were fighting the same enemy, weren’t they? The problem with this alliance was that that the revolutionaries didn’t see the improvements in woman’s rights as the end objective. As the revolutionaries morphed into the ‘progressives’ they sought out new victims to champion, this time Gays and Lesbians became the new cause and Feminists slipped down the hierarchy of victimhood. As the movement gained pace and political respectability, new causes had to be found and now the cause of Trans genderism, which effects less than 1% of the population, dominates cultural and political debate. There are some who see the issue of men in woman’s sports and prisons as the return of the patriarchy but if there is such a thing as the collective Patriarchy, then it’s main characteristic is that it is traditional and conservative. Redefining woman as ‘people who menstruate’, is clearly not something they would do.
“We’re living through the most misogynistic period I’ve experienced,” she continued. “Back in the 80s, I imagined that my future daughters, should I have any, would have it far better than I ever did, but between the backlash against feminism and a porn-saturated online culture, I believe things have got significantly worse for girls. Never have I seen women denigrated and dehumanised to the extent they are now.” JK Rowling
It should be difficult to take issue with Rowling’s statement where the very idea that there is such a thing as a woman is in doubt yet, looking at the response to hers and other supporters of women’s rights you can see the depth of hatred for her position. This is not from the right, not from men, not the usual suspects but from the progressives that the second wave feminists ran with. The ‘brothers and sisters’ look for a new outrage, a new cause that can galvanise the sheep into even more extreme positions and the feminists are afraid. They are afraid of losing their raison d’être, losing their revolutionary credentials, losing their positions in academia and quango’s, above all losing their influence in the progressives new society. Like the old French revolutionaries they have to prove their loyalty and commitment to each new progressive absurdity and if that means abandoning the women’s cause, then so be it. History will repeat itself, the progressives will turn on themselves because their cause has no roots, no relevance to real life and real people will reject them. But for the moment, has it come to this? Can it be that women’s rights are left to old white men like me and a handful of women? Am I really one of last last feminists left standing?
Notes
Maya Forstater – lost her case against unfair dismissal at an Employment Tribunal as a result of gender critical tweets. This decision was reversed on appeal where the Judge said that the Tribunal had erred in law. Forstater said: “I am delighted to have been vindicated. I lost my job simply for expressing a view that is true and important, and held by the great majority of people in this country: sex matters.”
Sources
Trans Women in female jails policy lawful, High Court rules, BBC, Eleanor Lawrie, 2/07/21,www.bbc.co.uk/news/uk-57692993
The court judgement that confirms women pay for trans rights, Spectator, James Kirkup, 2/07/21, www.spectator.co.uk/article/the-court-judgement-that-confirms-women-pay-for-trans-rights
transgender prison policy | judicial review | Fair Play For Women, FPFW, 6/07/21
Transgender prisoner who sexually assaulted inmates jailed for life, The Guardian, Nazia Parveen, 11/10/18
Picture THE 1960S-70S AMERICAN FEMINIST MOVEMENT: BREAKING DOWN BARRIERS FOR WOMEN.” Tavaana.
Feminism – Counterculture of the 1960’s and 1970’s (weebly.com)