Anshika Tiwari-
Lord Justice Holroyde and Mr Justice Swift ruled that it is lawful for transgender women to be housed in female prisons in England and Wales.
The Court said that barring all trans women from female prisons would mean depriving them of their right to live as their chosen gender.
“Women’s prisons can house inmates who were born male but identify as female, regardless of whether they have gone through any physical transformation or have obtained a gender recognition certificate”, the Court remarked.
The decision came after the claimant, known as FDJ reported incidents of being sexually assaulted by a trans -woman in the prison in 2017. She also informed that the trans woman in question had been convicted for sexual offences of a serious nature.
Her lawyers argued that “Housing trans women in the female prison estate exposes female prisoners to a risk of sexual assault that would not arise absent that allocation.”
Citing statistics, they said that the possibility of a trans inmate resorting to sexual attack and violence in female prisons was five times greater than that of a non-trans prisoner.
In his remark, Justice Holroyd acknowledged the substantially higher possibility of trans-prisoners committing sexual offences vis-a-vis their non-trans inmates. In addition, he also said that he took note of the vulnerability of many women in prison.
“I readily accept that a substantial proportion of women prisoners have been the victims of sexual assaults and/or domestic violence.”
However, he categorically made it clear that the statistical evidence lack details and one cannot rely upon them to reach any general conclusions.
The Court, while rejecting FDJ’s claim held that the policy of MOJ of housing trans-women was not unlawful or discriminatory in any manner. The Court, however also acknowledged the anxiety and fear that some female prisoners might go through due to the presence of a trans woman prisoner in their cell, but it said that the policy should focus on adequately assessing and managing risks.
The ruling came with a mixture of responses. While FDJ expressed her disappointment with the ruling, the Ministry of Justice was elated.
“We are pleased that the Court agrees that the way we manage transgender offenders strikes the right balance between protecting their legal rights and ensuring the safety of all prisoners”, a MOJ spokesperson reported.