Police, Crime, Sentencing and Courts Bill

Baroness Fox of Buckley Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 15th November 2021 Lords Chamber

[Lord Pannick (CB)]

My Lords, the noble Baroness’s speech ranged very broadly indeed. We are in fact debating a complex penal issue where we have a policy that addresses the matter very sensibly, as the noble Baroness, Lady Brinton, explained.

I will add just one point to this debate. It is not difficult to see the danger to people who were registered as male at birth but who are now registered under the Act as female if they were required to be placed in a male prison, as this amendment would require, irrespective of the particular circumstances of their case, as long as they are a sexual or violent offender. It should not need to be emphasised, but I will emphasise it because it is the fact, that many of these people have had hormone treatment, and some of them have had reconstructive surgery that has given them primary and sometimes secondary sexual characteristics of a physical nature. What do the proposers of the amendment think will happen to such people if the Home Office is obliged to place them in a male prison?

Of course we would all agree that, if there is an offender in custody for a suspected violent or sexual offence who is in possession of a gender recognition certificate and poses a risk to others in custody, then specific steps should be taken to isolate and deal with them. But that does not justify or require ignoring a gender recognition certificate in the way the amendment proposes.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, it has to be said that when I talk to members of the general public and tell them that it is MoJ policy to allow prisoners of a male sex to be housed according to their self-declared gender identity in a women’s prison, irrespective of whether they have taken any legal or medical steps to acquire their gender, that they do not need to have gone through any physical transformation and still retain male genitalia, which we have heard lots about already in this debate, and that they do not even need to have obtained a gender recognition certificate—they need just to declare that they are women and demand that they are moved to the women’s estate, and it is seriously considered—they are aghast. It falls under the category of, “Has the world gone mad?”

That common-sense response might not feel appropriate when discussing legislation, but in this instance it may help us to look at this issue in practical, real-life terms, not just in abstractions. That is why I welcome the amendment very strongly. Although it does not resolve all my concerns, I welcome its modest, narrow aim of removing the most egregious aspect of this situation: allowing male prisoners who identify as trans but have convictions of violence or sexual offences against women to live with women prisoners. There really is no point in the Government issuing strategies and grand words about violence against girls and women if the same Government have no qualms about letting rapists share the same confined living quarters as vulnerable women in prison who, let us be frank, cannot leave or escape because they are locked up by the state. This amendment’s focus is on convicted sex offenders and it is urgent that the Government take notice.

It is important to note that when gender-critical commentators and academics raise qualms about the general policy of housing transgender prisoners in the women’s estate, they are often dubbed transphobic and accused of holding a prejudiced view of all trans women as sexual predators, but this is a malign caricature. At this point I give a shout-out of solidarity to Professor Jo Phoenix, an esteemed and conscientious criminologist who has been harassed and traduced for raising such legitimate concerns.

Wherever one stands on the general issue, this amendment is specific and cannot be accused of implying that all natal men, however they identify, are a sexual threat to women, because that would not be true. We are talking only about convicted sex offenders and those guilty of violence. I still hope this probing amendment might encourage the Government to look more closely at a range of issues in this area. I particularly want the Government to consider whether the Ministry of Justice’s involvement over a period of time with the controversial lobbying group Stonewall, which has already been referred to by the noble Baroness, Lady Meyer, as with so many public bodies, may—just may—have led to the skewing of policies in a particular direction.

For example, I know how keen this Government are on data and statistics, but as Kate Coleman, the founder of Keep Prisons Single Sex, has noted—this just seems incredible to me—the MoJ admits that it does not know how many prisoners identify as trans because, with a gender recognition certificate, they are counted by their new legal gender. I am not sure how the noble Baroness, Lady Brinton, can be so sure of the statistics she quotes, because the tools designed to assess any threat posed by male prisoners who identify as trans women cannot be picked up accurately. If someone with a GRC attacks a female prisoner, it will be recorded as an assault by a woman on another woman.

I also want to query who is listened to in this discussion on what is obviously a clash of rights. In the course of the recent High Court ruling we have heard about, Lord Justice Holroyde outlined the need to balance

“the subjective concerns of women prisoners”

with

“the rights of transgender women in the prison system.”

This made it sound as though the women, the biological women, were all being overly subjective, and the transgender women had rights. Describing one side as subjective and the other with rights misses a crucial point, because that transgender woman has an identity that is not an objective fact but a subjective desire and then a declaration. Why are women prisoners’ subjective but rational concerns afforded less weight here?

When the High Court acknowledged that women prisoners may well be worried and “scared” about sharing prison accommodation with male-bodied prisoners, the court said that that fear was not enough to outweigh the desire of some male prisoners to be housed with women. I wonder: when did the prison estate, or indeed the law, allow its policies to be dictated by prisoners’ desires? I have worked with prisoners over a number of years, particularly with Debating Matters Beyond Bars. Many of the prisoners I have worked with have declared that they desire decent prison education. They desire retraining and better conditions. The prison authorities certainly did not accommodate their desires, so why are these desires accommodated when it comes to the trans issue?

Finally, I am keen that the Government look carefully, and use this probing amendment to do so, at how staff in prisons understand the issue of sex and gender in the context of training. The MoJ policy entitled The Care and Management of Individuals who are Transgender advises staff to complete an “eLearning module” on transgender identity. One of the training courses is named intersecting identities. I have looked at these, and it all rather terrifies me. It is one-sided, jargon-ridden and ideological. I hope this amendment might point the Government to raise and review the whole issue. For now, at least, a very modest amendment should be taken seriously if they really mean they care about protecting women from violent men.

[Lord Cormack (Con)]

My Lords, I just want to intervene briefly. I support this amendment. To me, it is morally wrong for a physical man to be in a woman’s prison. It is as simple as that. If he has identified himself as a woman, and deserves to be in prison, there should be special facilities that do not bring people of that sort into close proximity with women or—if they are in danger—with men.

--- Later in debate ---

[Baroness Fox of Buckley (Non-Afl)]

I want to respond to that because I think another point that follows from what the noble Lord, Lord Hunt, said is that the other argument that comes up all the time is that if you raise these issues you want a culture war, which I think the noble Baroness, Lady Chakrabarti, was implying.

On terminology, if we are all going to get offended, I do not particularly find descriptions of people as “cis” very helpful either, so when it comes to language issues, the point is that there are tensions that exist outside this place. We know that and it is disingenuous to pretend that there are not.

The noble Baroness rightly pointed out that this is a question of administrative duties of care. This amendment has been very carefully worded in a very narrow way about a very specific issue. What is the objection to that? This is precisely a responsible administrative duty of care, regardless of any hyperbole that people do not like other people using even when they use it.

[Baroness Chakrabarti (Lab)]

I thank the noble Baroness for that intervention. If I offended her in any way by my remarks—

[Baroness Fox of Buckley (Non-Afl)]

Not me.

[Baroness Chakrabarti (Lab)]

—I apologise. Clearly one of the reasons this is so sensitive is that, beyond this Committee and this Chamber, there is not yet even a settled courtesy about some of these matters. If I have offended any Member of the Committee, I apologise.

I was born a woman, and I still identify as a woman, but I have always tried to disagree well with people, including those on the Benches opposite, who I disagree with across the piece. I have never seen all men as a threat, and I have certainly never seen people of other races, sexualities or sex as a threat, and I am not calling anybody names in this debate.

--- Later in debate ---

[Baroness Fox of Buckley (Non-Afl)]

Can I just clarify one thing? Many trans people do not agree with some of the orthodoxies that have become associated with trans activism. The inference was that some people possibly have a particular view because they have not met any trans people. That is not true. Whole swathes of trans people do not go along with a particular political opinion, for example in relation to prisons, as in this instance. I am concerned that it is not seen that those people who argue a gender-critical view are doing it because they are ignorant and have not got out enough.

[Lord Paddick (LD)]

I hear and understand what the noble Baroness says. However, on this amendment, I am clear. We oppose Amendment 214 from the Front Bench. We do not support the noble Lord’s amendment, but we understand completely the concerns that he and other noble Lords have. However, we feel that the risks that the noble Lord seeks to minimise are already minimal, and that other risks that need to be managed are not covered by this amendment.

The amendment seeks to amend the Gender Recognition Act to reduce the risk that transgender prisoners present to others. This is neither necessary nor desirable for the following reasons. First, there are very few transgender prisoners. In a data collection exercise between March and May 2018, only 44 of 124 public and private prisons said that they had any transgender prisoners at all. The fact that there are so few transgender people in prison is also an indication of the level of offending by transgender people, the seriousness of that offending and the extent of the threat that they pose.

Secondly, the risk of mental health problems, self-harm and suicide is far greater among the transgender community than it is among those who are not transgender. Clearly, in a prison setting, the risk of mental health problems, self-harm and suicide is likely to be higher for all inmates; for transgender prisoners, it is likely to be very high indeed. In November 2015, an inmate who said that she would kill herself if she was sent to a male jail was found dead. Vicky Thompson, aged 21, died a week ago at the all-male HMP Leeds. Friends said that Thompson, who was born male but had identified as a woman since she was a teenager, had asked to be sent to a female jail in Wakefield. This is the sort of impact that having an unbalanced amendment, such as the one proposed by the noble Lord, Lord Blencathra, can have on transgender people.

Thirdly, if the Prison Service thinks that the risk presented by a transgender prisoner is such that they should be housed in a prison contrary to their legal gender, it can allocate them to a part of the estate that does not match their legally recognised gender. The decision must be taken after consultation with experts and at a high level, but it is possible.

A number of noble Lords have referred to the High Court judgment in July 2021, where lawyers for a female inmate in the female prison estate brought a judicial review against the MoJ. The MoJ argued that the policy pursues 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.”

It is interesting that I am actually quoting from the same case as other noble Lords have quoted from. Lord Justice Holroyde said:

“It is not possible to argue that the defendant should have excluded from women’s prisons all transgender women”—


as this amendment proposes. He continued:

“To do so would be to ignore, impermissibly, the rights of transgender women to live in their chosen gender.”


The case was not actually about excluding all transgender women; it was about challenging how policies applied to those who had been convicted of serious or violent offences against women—as the noble Lord’s amendment does.

The Lord Justice went on to say that trans women’s offending history was a factor that the existing policies were required to consider. He said:

“the need to assess and manage all risks is repeatedly emphasised”

throughout existing MoJ policies. He continued:

“In an exceptional case, a high risk transgender woman, even with a GRC, can be transferred to the male estate because of the higher level of security which is there available.”


Therefore, there is a mechanism to do exactly what the amendment is seeking to do, but on a risk-assessed basis.

The court also heard that expert panels are also involved in the process when allocating transgender prisoners and are “expressly required” to consider the trans woman’s offending history, her anatomy and her sexual behaviours and relationships. The Lord Justice said:

“They can in my view be expected to be astute to detect any case of a male prisoner who, for sinister reasons, is merely pretending to wish to live in the female gender.”


He concluded:

“the policies require a careful, case-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.”

This is the same case that noble Lords have been quoting from.

Yes, the Lord Justice said:

“I readily accept that a substantial proportion of women prisoners have been the victims of sexual assaults and/or domestic violence.”


He added that some women prisoners,

“may suffer fear and acute anxiety if required to share prison accommodation and facilities with a transgender woman 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.”

This amendment says nothing about whether the person has had sex-reassignment surgery, and there are trans women with gender recognition certificates who have not undergone gender reassignment surgery. The amendment, therefore, is not fit for purpose.

There are two sorts of risk that need to be managed here. There are the risks to the transgender prisoner, either from themselves, in terms of mental health, self-harm and suicide, or the risk from other prisoners, such as the risk of a transphobic attack or an attack based on their acquired gender if they present as a woman in a prison housing men, for example. There may be risks that the transgender person poses, perhaps because of a previous history of violence or sexual offences, but those falling into this category are few and far between and can be dealt with under the law as it stands. Any attempt to stereotype all transgender women as a threat to women flies in the face of the facts and needs to be robustly challenged.

The implication that transgender women are a threat to children reminds me of the sort of abuse that was directed towards me as a gay man a few decades ago.

--- Later in debate ---

I want hate crime legislation to be extended to misogyny. I very much hope the Equality and Human Rights Commission continues its pursuit of clarity and consistency, and I was interested to hear the remarks of the noble Baroness, Lady Falkner. I cannot see that conflating sex and gender, as in this amendment, goes in the right direction. We should wait to hear what the Law Commission advises.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I am of a mind to be opposed to the introduction of a misogyny hate crime, but your Lordships will be delighted to know that I will not be sharing my broader thoughts with the Committee at this late hour. However, there are problems that we need to be clear about before we can even have this conversation. What is our definition of misogyny here? We just assume that we are talking about it as a hatred of women, but it is not straightforward to legislate against hatred of women in 2021, when there is such a toxic debate about what our definition of a woman is. What is a woman, and who is and is not a woman? We heard a very lively discussion earlier; we in this place do not necessarily agree.

We know that somebody can simply declare themselves a woman, regardless of biological reality. We know that the debate about whether only women have cervixes has scuppered leading politicians, who seem unsure about biology in that regard. I do not say this to be glib, in case the noble Baroness, Lady Chakrabarti, thinks I am trying to stir up trouble again. I do so because it seems a genuine issue that the conflation of sex and gender—I know that the amendment does not do that; it separates them out—means that “misogyny”, as hatred of women, is not straightforward at the moment.

I also want to know which or what misogyny this amendment is trying to address. If you erase, for example, sex-based rights, which is what some feminists think is going on at the moment, is that a misogynistic outlook? Some feminists certainly argue that it is. There is certainly a huge amount of visceral and vile hatred thrown at gender-critical women, meted out by some of the gender and trans extremists—not by trans people in general, I hasten to add, but the kinds of people who drove Professor Kathleen Stock out of her job at Sussex University. They sounded misogynistic to me, but are they the target of this amendment? I am drawing attention to the fact that wanting a misogynistic hate crime does not clarify to me what the amendment is trying to do.

I understand that what I have said is contentious and that not everybody here will agree with some of the points I have made even so far. In this context, is it appropriate to get the law, let alone the police on the ground, to try to untangle what is a very toxic discussion in society and implement this? I do not know how putting that on to the police will help women.

[Lord Russell of Liverpool (CB)]

Would the noble Baroness perhaps accept that if she was to speak to some of the senior police officers, men and women, who have to deal with the victims of hostility and aggravated crimes, largely motivated by misogyny, and ask them what they think misogyny is, she would get a very clear response? They interact on a day-to-day basis with people who are direct victims of it.

While it is very interesting to have a “Moral Maze”-like discussion at a theoretical level, to be clear, what those of us proposing this amendment, including the noble and learned Lord, Lord Judge, want, is to do something now for the victims experiencing hostility based on misogyny. We should not be talking in airy circles about this; we need to do something.

[Baroness Fox of Buckley (Non-Afl)]

I will try to avoid airy circles. Not long ago, I was invited to speak to a gathering of police officers of various ranks on the issue of hate crimes and I can safely say that it was a 50/50 split. As an aside, quite a number of the female officers there were supportive of me and my position, so this is not an airy-fairy, “Moral Maze” position, although it does try to have some principle.

I was about to go on to talk about policing. I understand that one of the reasons there is a sense of urgency about making misogyny a hate crime is in response to horrendous and high-profile murders and rapes of women. We are all mentioning Sarah Everard, but there are many more. I wonder whether, in fact, framing violence against women through hate will solve the problem that it says it will tackle. As far as I can see, we have laws against indecent exposure, stalking, voyeurism, sexual assault, domestic abuse and rape. They are criminal offences, largely serious, and I do not understand why an additional law would act as a further deterrent or reassure women—I do not get that. If, as some argue—I agree with them—women are having problems gaining justice for those very acts in the courts at present, why would hate crime as an aggravated offence make any difference if the crimes in question are not being policed, investigated or prosecuted satisfactorily in the first place?

When I read the literature on misogyny and hate crimes—this was mentioned by the noble Baroness, Lady Newlove—the theory goes that minor incidents of gross sexist behaviour are misogynistic and indisputably part of a continuum that will lead to more serious crimes. I worry, however, that there is a danger there of relativising the horrors of rape and murder and tangling up the police in events that are not as serious, meaning that they take their eye off the ball in what I think they need to be doing: policing the streets, protecting people, prosecuting and so on. I am worried that this will cause a distraction for the police from doing the very job they need to be doing.

To use one example—I have been involved in talking to people in the area—the organised networks of male grooming and the systematic abuse and rape of vulnerable young women in Rochdale and Rotherham were largely ignored by the authorities, downplayed and continually not discussed. That is what we should be discussing here. Labelling the abuse as misogynistic does not seem to me to help; I just want the authorities to do the job of investigating when women are abused. That is far more important.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise very briefly—the noble Lord, Lord Russell, will be pleased to know—to offer the Green group’s support for Amendment 219 in the name of the noble Baroness, Lady Newlove. I shall simply make two points, one of which draws on the recent intervention by the noble Lord, Lord Russell.

First, the noble Baroness, Lady Newlove, referred to the origins of this amendment. Nottinghamshire Police Force has been a pioneer in this area. In my contribution on this subject on the Domestic Abuse Bill, I looked back beyond that. If you look at the history of how Nottingham police came to be doing it, it began with a group called Nottingham Citizens and a survey it conducted among the people of Nottingham. That led to a conference held at the Nottingham Women’s Centre, which informed the police and police action. This is something that very much grew from the grass roots up. In response to many of the contributions from people advocating Amendment 219A instead: this has been proven to work. It is there demonstrably on the ground. The fact is there.

For my second point, I refer to the author Caroline Criado Perez and quote her:

“There is enough data to know that men who kill women do not suddenly kill women, they work up to killing women … If only we were to listen to women and pay attention to the misogyny and aggression and violence that they deal with on a daily basis.”


That is what Amendment 219 seeks to do. The noble Baroness, Lady Noakes, suggests that we have to wait and wait and wait. I would suggest we have been waiting lifetimes—centuries—for this action. We have a proven model that has been shown to work. Let us put it into effect.