Female prisoners at greater risk of sexual assault by transgender inmates, High Court hears

 

By Gabriella Swerling

2 March 2021 • 7:12pm

Trans prisoners should be excluded from female wings because they are "disproportionately" likely to commit sexual assaults, the High Court has heard.

The Ministry of Justice's policy of placing trans women in women's prisons is being challenged by a prisoner who claims she was sexually assaulted behind bars.

FDJ, who cannot be identified, claims that in 2017 she was sexually assaulted in prison by a trans woman, known as J, who had convictions for "serious sexual offences against women". J was being housed in the general population of a women's prison.

FDJ’s lawyers claim that J has a gender recognition certificate (GRC), which is not admitted by the MoJ. As a result, they are arguing that the Government's policy of allocating trans inmates to prisons based on their declared gender identity unlawfully discriminates against women.

Speaking on the first day of the two-day remote hearing, Karon Monaghan QC, representing FDJ, told the court that trans inmates account for one per cent of the population of the women's estate but "they are responsible for 5.6 per cent of sexual assaults".

"There's a disproportionality," she said, adding that trans inmates are "more likely to be committing sexual assaults in the prison estate". She also quoted MoJ statistics detailing the population estimates for trans prisoners in England and Wales.

The hearing, taking place before Lord Justice Holroyde and Mr Justice Swift, was told that there were 125 trans prisoners in 2017, 60 of whom were serving sentences for sexual offences. Of those 60, 27 were serving a prison sentence for rape.

Ms Monaghan also told the hearing that, between 2016 and 2020, there were seven sexual assaults against females in women's prisons by trans women.

FDJ is also challenging a separate policy in relation to a "high-risk trans prisoner unit" at HMP Downview in Surrey, which was created in March 2019.

However, the MoJ argues that both of its policies pursue legitimate aims, including "facilitating the rights of transgender people to live in and as their acquired gender (and) protecting transgender people's mental and physical health".

The case was originally due to be heard in October but was adjourned after the MoJ disclosed potentially important documents less than an hour before the hearing.

At a brief hearing in October, FDJ’s lawyers claimed the current MoJ policy "exposes female prisoners to a risk of sexual assault that would not (otherwise) arise".

At the time, Ms Monaghan said the policy was put in place despite "the extraordinary vulnerability of female prisoners and the prevalence of a history of abuse and gendered violence". She also claimed MoJ statistics suggested that trans prisoners were "five times more likely to carry out sex attacks on inmates in women's jails than other prisoners are".

However, Sarah Hannett, representing the MoJ, said the claim was based on "a tiny data sample of seven sexual assaults over ... a four-year period", from which it was "impossible to draw any meaningful conclusion".

She added that an individual's "offending history" was considered when deciding where to allocate a transgender prisoner and that the risk of harm they may present to other prisoners was a "fundamental consideration".