Guest post: The Wrong Prison! Sending trans women to male prisons is a breach of the ECHR

 

Guest post  by Super Cyan:

Image by csifer.

A few days ago, Pink News reported that another transgender woman had been sent to a men’s prison. December last year, Caroline Dinenage, the Parliamentary Under-Secretary of State for Justice, Minister for Women, Equalities and Family Justice announced there would be a review that will ‘develop recommendations for revised guidelines which cover the future shape of prison and probation services for transgender prisoners and offenders in the community.’ The review was supposed to be released early this year, but as of yet, no review has been released.

Pink News highlighted that it is common for incarcerated trans individuals to be sent to the prison that reflects their legal gender, requiring a successful application for a Gender Recognition Certificate (GRC) under s.1 of the Gender Recognition Act 2004 (GRA 2004). This, as Pink News state, due to the complexity of the process, trans women facing prison are less likely to have secured said certificate.

What does the European Convention on Human Rights have to say?

The European Convention on Human Rights (ECHR) is a collection of rights there to protect individuals from state action and inaction. However, Natasha Holcroft-Emmess, writing for @rights_info highlighted that the European Court of Human Rights (ECtHR) were slow to find violations of Article 8 (the right to respect private and family life) despite obvious discriminatory treatment by the UK. That was, up until the case of Christine Goodwin v UK – 28957/95 [2002] ECHR 588, a post-operative trans woman (para 12) who had been the victim of mistreatment in the work place (para 15-16). The applicant’s complaint was that she was not eligible for a State pension at the age of 60 (the age for women at the time), the failure of the UK to take heed of previous warnings of the ECtHR for legal reform on the issue of gender identity, the failure to provide protection against discrimination, the failure to obtain a promotion due to her employer discovering her status through her National Insurance number and a failure to recognise the rapid changes in social attitudes on the subject matter (paras 60-63).

The ECtHR highlighted that previous case law did not recognise such issues interfering with Article 8 (para 73) but decided to depart from this as ‘Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within the respondent State and within Contracting States generally and respond, for example, to any evolving convergence as to the standards to be achieved’ (para 74) continuing that:

‘It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive approach would indeed risk rendering it a bar to reform or improvement…In the present context the Court has, on several occasions since 1986, signalled its consciousness of the serious problems facing transsexuals and stressed the importance of keeping the need for appropriate legal measures in this area under review.’ (para 74).

Crucially, the ECtHR recognised the serious interference domestic law had on the important aspect of personal identity. The ECtHR also pointed towards the stress and alienation arising from a discordance between the position in society assumed by post-operative trans individuals and the status imposed by law. The ECtHR believed this was no minor inconvenience as it places trans individuals in an anomalous position creating feelings of vulnerability, humiliation and anxiety (para 77). The ECtHR felt it ‘illogical’ that the UK allowed gender reassignment surgery but none the less did not recognise this in the legal sense (para 78).

The ECtHR reminded the UK that the very essence of the ECHR is the respect for human dignity and freedom, where the notion of personal autonomy being an important principle underlying the interpretation of its guarantees (para 90). Most importantly before finding a violation of Article 8 (para 93) the ECtHR highlighted that:

‘In the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved.’ (para 90).

Physical and moral security will be an important factor to be considered a little later, but the ECtHR’s judgment led to the GRA 2004 in which s.9 requires that once a GRC has been issued, that persons gender ‘becomes for all purposes the acquired gender.’

Transgender women in men’s prisons:

The case of AB, R (on the application of) v Secretary of State for Justice & Anor [2009] EWHC 2220 (Admin) concerned a 27 year old pre operative transgender woman who sought to challenge the Secretary of State for not transferring her to a female prison despite having a GRC (para 1). Despite living in her acquired gender for two years (as required by the GRA 2004) the Gender Identity Clinic treating her would not approve her gender reassignment surgery until she has spent a period living “in role” as a woman within a female prison (para 7). The High Court highlighted that the Secretary of State had the power to place women in a male prison but the circumstances for the present case were not met (para 10).

The questions before the High Court was whether such refusal violated Article 8 in light of s.9 of the GRA, whether Article 14 (securing Convention Rights without discrimination) in conjunction with Article 8 was violated and whether the decision by the Secretary of State was Wednesbury unreasonable (para 28). Section 9 of the GRA requires as stated that for ‘all purposes’ an individual must be treated as their acquired gender, yet Deputy Judge Elvin QC felt that that the restrictions imposed on the applicant (such as movement, clothing, and ability to participate in ordinary prison life (para 5)) wouldn’t likely apply in the rare case of a biological woman held in a male prison (para 31).

With regards to Article 8, after careful consideration of its case law in this area, with an emphasis on personal autonomy (para 38-53) it was concluded that Article 8 was engaged and therefore the Secretary of State had to justify that measures satisfied Article 8(2) (the limitations of the right to privacy etc). Deputy Judge Elvin QC had already concluded that the decision to keep the claimant in a male prison had violated Article 8 (para 57) but went on to explain why. Deputy Judge Elvin QC placed emphasis on risk and resources and that although the state has a generous margin of appreciation (discretion), when such decisions places significant restriction on a prisoners personal autonomy then the Court should scrutinise carefully the basis upon which resources are said to justify such a significant infringement of personal freedom (para 58). Deputy Judge Elvin QC highlighted that severe frustration would be caused by the continuation of male imprisonment and the consequential denial of surgery (para 60), something which Mr Spurr (Chief Operating Officer of NOMS (the National Offender Management Service) in the Ministry of Justice (para 21)) omitted to consider (para 60-61). The Secretary of State was criticised for not taking into account the consequences of the frustration of the Claimant’s progress, and its possible effects on risk and the costs of keeping her within a male prison (para 64) whilst only considering the cost of segregation on the basis that it was likely to be required only if the Claimant were transferred into a female prison and only if it were required for a significant period of time (para 73). Moreover, the Secretary of State did not consider the possibility that the period might not be particularly long, but also wholly failed to consider, let alone balance, the costs which would be likely to arise if the denial of a transfer and the loss of hope at progressing to qualify for reassignment surgery were to increase the difficulties of the Claimant living in a male prison and themselves lead to segregation (para 73). Deputy Judge Elvin QC felt this was clear not only from the circumstances of the Claimant’s offending, but from Dr Travers’ reports (who maintained that keeping the Claimant in limbo would increase frustration, indicate a shift in her risk profile, risk of self harm and harm to others and deceitful behaviour increase (para 62)) which was not disputed (para 62-71) by the other experts (para 73). There were further criticisms of the Secretary of State ranging from adopting an ‘extreme position’ on the length of segregation (para 74) and ultimately concluded that ‘Secretary of State’s decision to continue to detain the Claimant in a male in prison is in breach of Article 8’ (para 78).

Deputy Judge Elvin QC did not consider it necessary to consider Article 14 based on the finding of Article 8 (para 79) but did find the Secretary of State’s decision to continue male detention as Wednesbury unreasonable (para 85). This is a ground which requires much higher threshold to be considered unlawful than human rights grounds, which serves to highlight just how flawed the Secretary of State’s decision to continue was.

This case demonstrated that post-operative reassignment surgery (as was in Goodwin) was not necessary to secure the Convention Rights of a transgendered individual provided that a GRC had been issued.

What about not having a GRC?:

The case of M v Revenue & Customs [2010] UKFTT 356 (TC) concerned a post operative transgender woman who would have to continue paying National Insurance Contributions (NICs) until she was issued with a GRC (para 1). It was argued that Article 8 as interpreted in Goodwin required recognition of the acquired gender of a post-operative transsexual person, something which the GRA 2004 did not, but instead imposed a disproportionate two-year waiting requirement (para 18). However, Judge Nicolas Paines maintained that s.9 of the GRA 2004 made it clear that prior to the issue of a GRC, a person’s sex for legal purposes is their biological sex (para 22).

Judge Nicolas Paines did refer to A v West Yorkshire Police [2004] UKHL 21, which is an important to summarise. The case concerned the decision of the Chief Constable rejecting the application of a post-operative transgender woman (Ms A) to join his force as a constable on the grounds that she could not search suspects (para 2-6). Ms A relied on a European Court of Justice (ECJ) case prior to the Chief Constable’s decision in P v S and Cornwall County Council (Case C-13/94) [1996] ICR 795 which as Lord Bingham noted that it was held in very clear and simple terms that the then Equal Treatment Directive prohibited unfavourable treatment on grounds of gender reassignment (para 10) and ultimately the House of Lords ruled in Ms A’s favour. However, Judge Nicolas Paines felt that this did not assist the human rights argument (para 26) and felt that he was constrained to hold that the appellant a man at all times prior to the issuing of a GRC even if it was considered contrary to the ECHR (para 28).

What this case highlights just as Pink News did, is of the complexities faced with obtaining a GRC and the consequences of not obtaining one when if one is sentenced to prison. This would likely mean that prior to having a GRC, any post and pre-operative transgendered individual would be sent to the prison of their birth gender i.e. the wrong prison.

But there is still hope:

In the case of Identoba and Others v. Georgia – 73235/12 – Chamber Judgment [2015] ECHR 474 the ECtHR held that Georgia’s failure to prevent, and effectively investigate, attacks against an anti-trans/homophobia march violated Articles 3 (freedom from torture, inhumane and degrading treatment) and 11 (freedom of assembly) of the ECHR in conjunction with Article 14.

One of the important criticisms that the ECtHR made against Georgia was that ‘domestic authorities knew or ought to have known of the risks associated with any public event concerning that vulnerable community, and were consequently under an obligation to provide heightened State protection’ (para 72). The risks and dangers associated with sending trans women to male prisons is well documented and even in the case of AB, R (on the application of) v Secretary of State for Justice & Anor the individual in question was segregated to a large extent from her male inmates, highlighting that the UK is indeed aware of this issue. The ECtHR held that:

‘[T]hat violence, which consisted mostly of hate speech and serious threats, but also some sporadic physical abuse in illustration of the reality of the threats, rendered the fear, anxiety and insecurity experienced by all thirteen applicants severe enough to reach the relevant threshold under Article 3 read in conjunction with Article 14 of the Convention.’ (para 79).

And subsequently held that Georgia had failed in its positive obligations under Article 3 in conjunction with Article 14 (para 81).

Arguably the most important aspect of this was when the ECtHR held that ‘the prohibition of discrimination under Article 14 of the Convention duly covers questions related to sexual orientation and gender identity’ (para 96). Such clarification was welcomed by Transgender Europe and with Peter Dunne (Enhancing sexual orientation and gender-identity protections in Strasbourg, The Cambridge Law Journal 75(01):4-8 · March 2016) correctly highlighting that:

‘Adopting the more inclusive terminology of “gender identity”, which focuses on internal and individual experiences of gender rather than physical appearance, the Fourth Section has confirmed that all transgender persons, irrespective of whether they seek medical intervention, have equal enjoyment of Convention rights.’

Conclusions:

What does this mean for sending transgender females to male prisons (and vice versa)? Based on Identoba and Others v. Georgia an Article 8 (and possibly Article 3) argument in conjunction with Article 14 would better protect transgender individuals who neither had a GRC issued at the relevant time or did not undergo reassignment surgery. It would mean that decisions to send trans individuals to the wrong prison are open to challenge irrespective of whether a GRC is issued or are in the post-operative stage. Based on AB, R (on the application of) v Secretary of State for Justice & Anor and taking into account what was previously maintained, that being ‘in the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved.’ It is very likely that the rights in question would be breached and thus would be in line with the Convention being practical and effective, not theoretical and illusory in the fight to protect the rights of all transgender people.