Police, Crime, Sentencing and Courts Bill

Debate between Baroness Falkner of Margravine and Lord Farmer

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 10th January 2022 Lords Chamber

[Lord Farmer (Con)]

My Lords, one of the main reasons I put my name again to this revised amendment in the name of my noble friend Lord Blencathra is that I was not persuaded by the Minister’s assurances in Committee that risks are properly balanced before a trans woman is housed in the female prison estate.

First, I heard no mention of the consideration not just of physical harm coming to female prisoners but of the risks of introducing high levels of fear and anxiety by accepting male-bodied female-identifying persons into the prison. More than half of female prisoners have experienced domestic violence—we have already heard that this evening in the previous debate—the vast majority of which will surely have been at the hands of men. A case board investigating the risk that a trans woman presents will not be looking through the filter of trauma, abuse and male exploitation that many imprisoned women apply to their surroundings. I undertook several prison visits for my MoJ-commissioned review of the female estate. As was typical, I questioned a panel of prisoners. On one visit, the de facto leader, who dominated the proceedings, was obviously male and not attempting to pass as a woman. This transgender prisoner might not have been exerting sexually charged and motivated power, but there was a palpable imbalance all the same.

Secondly, Ministry of Justice policy is not in step, as we have heard this evening, with public opinion. A poll conducted by Women for Women UK found that, when respondents were asked whether intact male-bodied trans women should be housed in a women’s prison, support slumped to net disapproval of minus 20%. Contrary to public perception, the overwhelming majority of male-born transgender people retain their penis and are fully male bodied. Moreover, a 2016 meta-analysis established that less than 3% of the transgender population is undergoing any gender-affirming surgical or hormonal treatment, with the remaining 97% simply self-identifying with no modifications to their natal sex body at all.

The noble Lord, Lord Pannick, made an argument about the trans woman prisoner whom these policies are designed to protect, who may have been living in their acquired gender for many years, have had full reassignment surgery and treatment, pass perfectly as a woman and have been convicted of a minor non-violent offence, and said that to refuse to house this prisoner in the female estate would be wholly unjustified. But the statistics I have just given, and my own understanding and albeit limited experience of transgender prisoners housed in women’s prisons, lead me to ask: is this description really characteristic of the population of trans women prisoners, including those held in the female estate? This example of a transgender prisoner seems divorced from reality and from the prisoners with whom female offenders are forced to contend on a daily basis. It is perplexing why prison policy is formulated to account for a situation that may never transpire, exposing female offenders to prisoners who are very far removed from that hypothetical.

Rhona Hotchkiss, a prison governor from Scotland who, as deputy in a men’s prison, initially pushed for trans women to be housed in the female estate, became deeply concerned at how this practice played out when she became governor of Cornton Vale. A prisoner transferred from the male estate when they identified as a woman then reidentified as a man after a short time in Cornton Vale. Frustrated by the delay while the Scottish Prison Service deliberated, the prisoner threatened to rape other prisoners and staff. Hotchkiss was deeply shaken, thinking: “What woman threatens to rape other people”—a crime for which a penis is required—and “Why should we take people’s word for this? We don’t for anything else”. This to me strikes at the heart of the issue: we are giving the benefit of the doubt to people who identify as women yet have all their male hormones and physicality intact. We are giving them access to female spaces despite the benefits to and rights of women to have sex-specific prisons.

This amendment has broader implications. It speaks to the necessity of upholding the fundamental rights and freedoms of women and girls on the basis of sex, not gender, as recognised in UK and international law. This is not simply a disagreement between the Government and those of us who have spoken to the amendment. It is a difference in point of principle between the Government and large swathes of the electorate, as polling indicates. Gender does not take precedence over sex. Males do not take precedence over females. The protected characteristic of gender reassignment does not take precedence over the protected characteristic of sex.

To summarise: in the prison context, male hormones and a male sex organ surely present considerable risk to vulnerable women, for the varied reasons I have given above, which include perceived threat to mental safety and actual threat of domination and exploitation, not just the objective risk of physical and sexual harm. I support my noble friend’s amendment.

[Baroness Falkner of Margravine (CB)]

My Lords, I refer to my interests in the register and want to make it clear that I am not expressing any opinion on the merits of this particular amendment. But, because the debate has ranged far and wide beyond the amendment, and because there appears to be some misunderstanding in the House as to what the amendment is, I hope that, when the noble Lord stands to speak to this amendment, he will clarify two important factors.

I wonder whether he would tell the House whether housing a trans woman holding a gender recognition certificate on the male estate would be unlawful, as that woman is legally a woman. That is quite an important distinction, and it has not come out. There is clearly a misunderstanding there. The second point I would like him to clarify is whether housing a trans woman on a male estate, or a trans man on a women’s estate, could be unlawful as it could amount to discrimination.