Caring for transgender prisoners

Third suicide in just over a year

The tragic suicide of Jenny Swift at HMP Doncaster on 30 December 2016 was the third case of a transgender woman prison killing herself since November 2015.

It was therefor a sad case of good timing that yesterday (10 January 2017), the Prisons and Probation Ombudsman published his “learning lessons” bulletin on transgender prisoners.

Learning lessons

The bulletin draws on recommendations from investigations into deaths in custody, as well as complaint investigations. It identifies six lessons from past cases that aim to protect transgender prisoners better from bullying and harassment and to support transgender prisoners better to live in their gender identity while in prison. The bulletin notes that it is difficult to estimate precisely how many serving prisoners are transgender, but while the number is growing, it is still relatively small – approximately 80. Nearly all of the complaints received, and deaths investigated (five between 2008 and August 2016) were related to transgender female prisoners, nearly all of whom were housed in the male estate.

Prisons house male and female prisoners separately, and will usually distinguish gender based on that which is recognised by law. According to the Gender Recognition Act 2004, proof of gender is determined either by the person’s birth certificate, or a gender recognition certificate (GRC). The process for obtaining a GRC is complex. Because of the process and the cost involved, because of the symbolism, or because it can have implications for existing marriages, many transgender people choose not to obtain a certificate. Most transgender prisoners are, at least upon first arrival in prison, housed according to the gender they were assigned at birth.

The regulations that guide the care and management of transgender prisoners in England and Wales are found in a Prison Service Instruction (PSI), issued in November 2016. Many of the lessons outlined, and many of the recommendations previously made by the PPO, are reflected in the new PSI (details below).

Previous research has shown there is a greater prevalence of mental health concerns and risk of suicide in the transgender population. When a person enters prison, they leave behind what support they had in the community. The prison environment can be particularly difficult for transgender prisoners, exacerbating existing vulnerabilities.

The bulletin highlights the need for:

  • evaluating the location of a transgender prisoner based on an individual assessment of their needs and considering the possibility of them residing in the estate of their acquired gender;
  • all relevant people involved in a transgender prisoner’s care attending ACCT case reviews (for those deemed at risk of suicide or self-harm);
  • meaningfully investigating all allegations of transphobic bullying and harassment and taking steps taken to challenge and prevent it;
  • personal officers having regular, meaningful contact with transgender prisoners, staff being aware of their vulnerabilities and challenging inappropriate behaviour;
  • local policies to be in line with national guidance and not imposing unfair additional restrictions; and
  • reasonable adjustments being made for transgender prisoners to help them to live in their gender role.

Transgender issues concept and gender identity symbol or sex reassignment surgery idea as a female and male bathroom doors with a question mark shadow as a metaphor for sexual confusion as a 3D iullustration.

NOMS Review

The PSI highlighted by the Ombudsman emerged from the MoJ Review on the Care and Management of Transgender Offenders published in November 2016 which acknowledged that the National Offender Management Service needed to undertake a fundamental reappraisal” of its policy on transgender prisoners and that:

the treatment of transgender people in courts, probation and prison services has not kept pace with the development of a more general understanding of the issues surrounding gender in society.

The review was internally commissioned but benefitted from the independent oversight of Peter Dawson (Deputy Director, Prison Reform Trust) and Jay Stewart (Director, Gendered Intelligence). The review gathered evidence from a wide range of stakeholders, including many in the transgender community, and met transgender prisoners serving both long and short sentences.

The review’s introductory remarks signal an important commitment to change:

Current instructions and practice place an emphasis on gender at birth, the possible acquisition (or desire to acquire) a gender recognition certificate (GRC), and on a person’s decision to undergo surgery or undertake other significant medical intervention. While those people with a GRC must be treated in the acquired gender in every respect, it must also be taken into account that not all these factors are equally important to all transgender people. Many successfully live their lives without such interventions and therefore policy in this area needs to evolve and take as its starting presumption a wish to respect someone in the gender in which they identify, once in the care of the criminal justice system.

Allowing transgender offenders to experience the system in the gender in which they identify will, in the great majority of cases, represent the most humane and safest way to act. We believe it will also assist successful rehabilitation

The review sets out seven underpinning actions and principles.

1: Gender identity

The review states that there should be a general presumption that people who are living in a gender different to that of their assigned sex at birth should be treated by offender management services according to the gender in which they identify.

The review recognises that this might not always be straightforward but that NOMS policy should set out clear criteria with a transparent appeal process.

It recommends that the prison service should develop a single “facilities list” of items available to be purchased that can be used in either male or female establishments, and standardise rules on what constitutes acceptable clothing.

2: Risk and risk assessment

The review makes a strong commitment to the principle that:

Any assessment of a transgender offender’s risk of reoffending should be based on valid, evidenced factors that relate to that individual, as for any other offender. We have seen no evidence that being transgender is in itself linked to risk. Risk assessments must be free from assumptions or stereotyping.

3: Early and anticipative

This principle sets out the importance of forward planning and states that where a transgender person is on or awaiting trial, or in any other situation where going to custody is a possibility, addressing the allocation question early will obviate the need for late-stage decisions by court-based or escort staff.

The review recommends that case conferences on allocation decisions should be held pre-sentence and before any decision to remand in custody, adding that if necessary, processes should to be slowed by adjournment for reports to be produced, for instance. The requirement to keep vulnerable people safe is explicitly deemed to outweigh the desirability of swift proceedings.

4: Isolation and integration

This principle states clearly that being transgender should not be used as a reason to isolate someone without another legitimate reason, and only after reallocation has been considered.

5: Training and expertise

The review recommends that all NOMS staff should understand the rights of all transgender and non-binary people, and not just those undergoing gender reassignment, through training and e-learning.

6: Recording and monitoring

The review sets out the ambition for better recording of transgender identities:

Equality information should be gathered at the earliest stage and disclosure and consent for it to be shared should be encouraged by, for instance, demonstrating transgender inclusion.

7: Policy review

Finally, the review makes a commitment to establish a new Advisory Group to ensure that any new operational policy on transgender offenders is fit for purpose.

Conclusion

Jenny Swift’s death — in a male prison where she was denied her hormone treatment — makes it vital that the recommendations of the Ombudsman and the requirements of the PSI are implemented and closely monitored.

All prison posts are kindly sponsored by Prison Consultants Limited who offer a complete service from arrest to release for anyone facing prison and their family. Prison Consultants have no editorial influence on the contents of this site.

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