Professor Alex Sharpe, Keele University
This article considers the recent case of Karen White and offers a measured response, in place of the heated reactions, the case has so far generated in the media and elsewhere. The key facts about the case are that Karen White, a transgender woman, was placed in HMP New Hall, a female prison in West Yorkshire, while on remand for rape and despite a history of sexual offending, and that while on remand, she assaulted four female inmates. The case has been manna from heaven for the right wing media and those who, with no sense of irony, describe themselves as gender critical feminists, and who oppose trans rights. The Times’ Janice Turner is one journalist who is (rightly) angry about the case, which she likens to ‘locking a fox in a henhouse.’[1]
She calls for prison policy change so as to preclude “male-born (sic) criminal(s) who [have] committed a violent or sexual crime against women” from being allocated to the female estate. While some readers may sympathise with this suggestion, we need to recognise what it and Turner’s fox metaphor masks. First, let us begin with some statistics. Turner refers to a ‘BBC reality check’ that found that there are currently 125 trans prisoners in English and Welsh prisons, 60 of whom have sex offence convictions (48%) (while she does not say so explicitly, these figures appear to be 2017 figures provided by the Ministry of Justice after the anti-trans group, Fair Play for Women, put in an FOI request).[2] Before proceeding further, let us consider this 48% figure. While it suggests nearly half of all trans prisoners are sex offenders, it is actually very misleading. This is because the statistic: (i) only counts trans prisoners who have informed prison officers of their trans status, (ii) does not count trans prisoners with a GRC, and (iii) does not take account of trans prisoners on shorter sentences, because they were not included in the survey. Accordingly, the actual percentage of trans prisoners who are sex offenders is likely to be considerable lower than 48%. This is perhaps especially so given exclusion of prisoners on shorter sentences, as they are, by definition, less likely to be sex offenders.
If we assume that all of the 60 prisoners who have a history of sexual offending are trans women (which is clearly false, a point to be developed below), and located within the female estate (also clearly false as most are located within the male estate), then, given there are currently approximately 4,000 women in our female prison system,[3] trans women would account for only 1.5% of the whole. However, in reality, the figure is much lower. According to the Times, citing figures derived from the Ministry of Justice response to the FOI request referred to above, there were 25 trans women prisoners located within the female estate in 2017.[4] However, information is lacking regarding how many of these 25 are sex offenders. It may be very few. If this were not the case, we would expect The Times, et al, to make such facts very public, and quick smart. And, in relation to trans sex offending in female prisons, it is highly unlikely we would not have heard about other cases, given, in the current political climate, a single incident becomes a media bonanza. Karen White is a case in point. So is the case of Jessica Winfield, who made unwanted sexual advances on female prisoners while housed at HMP Bronzefield.[5]
Further, no attempt is made to differentiate the trans population. In other words, there is a trans male prison population. If for no other reason, we know this because of a series of sex offence prosecutions brought against such individuals for non-disclosure of gender history prior to intimacy.[6] Putting to one side the injustice of such prosecutions, and the fact that it cautions us regarding the casual distribution of victim/perpetrator status across the cis-trans divide, this means that the trans female prison population, and the portion of that population properly categorised as sex offenders, is again smaller than some would like us to believe. To the extent that we are talking about trans women, we should also recognise that in some cases we are talking of historical offending. Risk assessment needs to consider present risk and this will require consideration of a range of factors including the fact that some trans women are on a hormonal regime that significantly reduces the libido and in many cases amounts to chemical castration.
A further, and important, issue concealed by the suggestion we ought to exclude all trans women sexual offenders from the female estate is the apparent lack of concern exhibited by those making the suggestion toward female victims of cis female violence. This kind of violence, like violence against women perpetrated by prison officers,[7] rarely if ever gains the kind of traction that trans offending does. We might want to separate here, a genuine concern for the well-being of women prisoners from the agendas which their victimisation at the hands of trans prisoners sustains. In any event, the issue of cis female violence against other women is not an idle affair. According to Ministry of Justice statistics for 2015, there were 195 incidents of assault per 1000 prisoners in female prison establishments (780). In relation to serious assaults, the figure is 14 per 1000 (52) (pp 131-132).[8] In case it is thought that these figures may include offences committed by prison officers (a serious issue in its own right, as noted above) rather than by prisoners themselves, the statistics show that there were 500 prisoner on prisoner assaults (with a further 200 prisoner on officer assaults) (p. 134).
The disproportionality of the approach recommended by Turner is especially apparent in the fact that she does not limit her exclusionary zeal to trans women with a history of sex offending. Rather, she insists that, irrespective of offence history, those trans women ‘who retain male genitals’ should be excluded.[9] It is apparent that Turner’s fox is a metaphor not for trans women sexual offenders, but trans women as a whole. Better policy would focus less on trans and more on those prisoners (cis and trans) who have a history of sexual offending. The fox metaphor is also unhelpful because it is used deliberately to misgender trans women. However, there are clearly vixens in female prisons and other prisoners need to be protected from them. This can be done in one of two ways. First, though this is hardly ever mentioned in such debates, female prisoners (cis and trans) who pose a significant enough danger to other prisoners (cis and trans) might be segregated in a separate prison unit.
Second, prisoners (cis and trans) identified as dangerous can be allocated/transferred to a male prison. Provision for this option already exists by virtue of the National Offender Management Services (NOMS) Care and Management of Transgender Offenders (PSI 17/2016) prison policy document, which has been effective since 1st January 2017. Where a transgender woman prisoner requests to be allocated to the female estate, prison policy requires that a Transgender Case Board be established within three working days of her reception into custody (para 4.6). The board’s determination as to whether a transgender woman is to be located in a male or female prison is to be based on ‘evidence of living in the gender with which the offender identifies.’ Such evidence includes an altered birth certificate, GRC (full evidence), acceptance into a Gender Identity Clinic, prescription of hormones, and actual gender presentation (strong evidence). Evidence tending against transgender claims includes ‘limited clarity or stability of intention to permanently change gender,’ while counter-evidence includes situations where there is evidence that location in a female prison is motivated by a desire to access future victims (Annex A).
While those trans women who have obtained a GRC “must be placed in a female prison” (para 4.7), this is subject to a very important exception, one which precludes locating any woman (cis or trans) in a female prison where “the risk posed to other offenders and/or staff prevents location in the female estate” (para 4.7). The point is elaborated in para 6.3: location in a male prison “can only happen if the risk concerns surrounding the prisoner are sufficiently high that other women with an equivalent security profile would also be held in the male estate.”[10] In other words, to the extent that a threat is posed within the female estate, either by cis or trans women, provision already exists to deal with it. Karen White should have been placed in a segregated unit within a women’s prison or placed in a male prison (where she would almost inevitably be segregated for her own protection) because her offending history posed too great a risk to other female prisoners. Prison authorities have acknowledged as much. Indeed, it would seem that trans women sex offenders requesting transfer to the female estate are routinely turned down in terms of prison practice. Frances Crook, chief executive of the Howard League for Penal Reform, has stated that during a recent visit to one female prison, the prison governor informed her that five trans women sex offenders had requested transfer. All were turned down.[11]
The solution to this type of problem lies not in a blanket ban against trans women, but in proper and robust risk assessment of all female prisoners. It might be said that no or few cis women (I am aware of none) have been placed in a male prison and therefore it is only trans women who pose a significant threat within the female estate. However, if no cis women have been placed within the male estate, this rather begs the question, given evidence of the existence of cis female prisoners with a history of violence. In other words, if prison policy decision-making is guided not by transphobia, but by actual risks of harm, how is this possible? Is it the case that cis women’s uncontentious status as women precludes application of para 4.7, whereas trans women’s daily struggle for this very status renders them vulnerable to it. That is, while we focus on the awful deeds of Karen White, and while we foreground her transness, have we failed to recognise prison discrimination against trans women?
In conclusion, what we need to do is focus not on trans, but on (cis and trans) vixens in the henhouse. After all, there are no foxes in female prisons, not since Emily Fox, the cis woman teacher convicted of sexual offences against a 15 year old school girl in 2014, was released from prison.[12] And we should keep at the forefront of our minds the fact that trans women sex offenders are being weaponised for a specific purpose – the derailment of the government’s proposals to adopt an approach to gender identity recognition based on self-identification, one I might add, adopted in Ireland, Denmark and elsewhere, and without the consequences fantasised by opponents of reform. The proposed reforms to the Gender Recognition Act 2004 are welcome, though long overdue. They will make the recognition process both simpler and cheaper, and they will also, and importantly, depathologise it. We can either get behind this reform, and reject the false division between cis and trans women that some would like to sell us, or, and persisting with Turner’s fox metaphor, we can join the ranks of ‘the unspeakable in full pursuit of the uneatable.’[13]
* This article was originally published on 11th Sept. This amended version attends to a couple of errors/oversights in the original and develops some of the arguments made. However, the substantive arguments made in the original article remain unaffected.
Professor Alex Sharpe, School of Law, Keele University
17/9/18
[1] Janice Turner, The Times, 8/9/18 ‘Trans Rapists are a Danger in Womens Jails’ https://www.thetimes.co.uk/article/trans-rapists-are-a-danger-in-women-s-jails-5vhgh57pt See also James Kirkup, The Spectator, 7/9/18 ‘Why was a Transgender Rapist put in a Women’s Prison?’ https://blogs.spectator.co.uk/2018/09/why-was-a-transgender-rapist-put-in-a-womens-prison/
[2] ‘How many Transgender Inmates are there?’ BBC News, 13/8/18 https://www.bbc.co.uk/news/uk-42221629 In 2016 the Ministry of Justice estimated the trans prisoner population for England and Wales to be 70 https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7420
[3] Janice Turner wrongly suggests the figure to be 8,000. See Ministry of Justice, Statistics on Women and the Criminal Justice System 2015 (24/11/16) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/572043/women-and-the-criminal-justice-system-statistics-2015.pdf p 109.
[4] Kaya Burgess, ’Governors fight putting trans inmates in women’s jails’ The Times, 4/6/18
https://www.thetimes.co.uk/article/governors-fight-trans-inmates-in-women-s-jails-vg0kpv5q0
[5] Loulla-Mae Eletheeriou-Smith, ‘Transgender rapist’s segregation in women’s prison “not due to sexual advances on inmates”’ The Independent, 6/9/17 https://www.independent.co.uk/news/uk/home-news/transgender-rapist-womens-prison-segregation-sexual-advances-inmates-sexual-assualt-a7932866.html
[6] Alex Sharpe, Sexual Intimacy and Gender Identity ‘Fraud’: Reframing the Legal & Ethical Debate (London: Routledge, 2018).
[7] Shona Faye, The Independent, 11/9/17 ‘If you really want women to be safe in prisons, it’s not transgender prisoners you need to be wary of’ https://www.independent.co.uk/voices/transgender-prisons-jessica-winfield-gender-recognition-act-a7940561.html
[8] Ministry of Justice, Statistics on Women and the Criminal Justice System 2015 (24/11/16) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/572043/women-and-the-criminal-justice-system-statistics-2015.pdf While these statistics do not provide information regarding cis female prisoner sex offending while in prison, it seems highly likely, given the approximately 4,000 inmates, that at least some incidents do occur. Certainly, we know that cis women have been convicted of sexual offences. Indeed, such offences appear to be on the increase. According to The Times, in 2016, 120 women and girls would found guilty of a range of sexual assaults, up from 48 in 2006 (Richard Ford, ‘More Women Convicted of Sex Offences’ https://www.thetimes.co.uk/article/more-women-convicted-of-sex-offences-bfdvv2w37 We do not know how many of these offences were directed toward other women.
[9] Speaking on the Victoria Derbyshire show (10/9/18), Dr Nicola Williams of Fair Play for Women went further, insisting that prison allocation decisions “should be based on someone’s actual birth sex.” It should also be noted that a concern over pregnancy in the female prison might be relied on to support an argument for exclusion of trans women prisoners who still possess their reproductive capacity. However, such an argument would also lead logically to the removal of most male officers from female prisons.
[10] There is provision for location in the male estate if requested by a transgender woman.
[11] Alexandra Topping, ‘Prison reformer criticises “decisions that have harmed women” in Karen White case’ The Guardian 9/9/18 https://www.theguardian.com/uk-news/2018/sep/09/sexual-assaults-in-womens-prison-reignite-debate-over-transgender-inmates-karen-white
[12] The BBC, 5/9/14, ‘Teacher Emily Fox jailed for having sex with pupil’ https://www.bbc.co.uk/news/uk-england-beds-bucks-herts-29078360
[13] Oscar Wilde, A Woman of No Importance, 1893.
Very informative.thank you. Just one point- Cis women used to be put in a women’s wing in a men’s prison- This was Durham Prison. This stopped in 2005.
Thank you, Charlie and for the info re Durham prison.
Do you think transmen should be transferred to a male prison?
I would also like to make the point that you are more likely be be assaulted by a woman in a woman’s prison because there are only supposed to be women in there. It’s a recent development that women have been locked in with people who have fully functioning penises so the stats might change a bit.
Bits of this article appear rational, balanced and sensible – like segregating violent prisoners from the general prison population, regardless of sex, or ‘gender identity’ or whatever other personal characteristic they might wish to ascribe to themselves (like ‘transmogrified alien’, or ‘semi-sentient cybernetic organism’, or whatever).
The author’s prejudices are, however, rather unattractively displayed in the cheap shots she can’t resist taking at those who don’t slavishly adhere to trans ideology.
And, the insults don’t make a lot of sense. For example, what’s ironic about ‘gender critical feminism’? What’s humorous about the name ‘Fair Play for Women’?
Further, you exhort readers to ‘get behind’ the self-identification reforms to the Gender Recognition Act’ and say, WITH NO SENSE OF IRONY, that we should ‘reject the false division between cis and trans women that some would like to sell us’.
Do you not understand basic human biology? I guess that’s possible, given you are a lawyer, and lawyers make their living out of obfuscation – turning black and white into grey for their own purposes. For your information, there is a very clear division between natal women (I refuse to use ‘cis-women’ because for some reason it offends me that after millennia of existence as a stand alone category of human, female born persons now only exist as a counterpoint to males who decide to ‘identify’ as women), and trans women. Trans women are born male. If you need elaboration of this reality, Google ‘sexual dimorphism in humans’ – it should get you up to speed.
And, before you counter with – ‘What about intersex people’ – intersex individuals, or those with a Disorder of Sex Development (DSD) are born with anomalous sex chromosomes. I reiterate, they are BORN WITH these anomalies – they aren’t born with normal male or female chromosomes, and decide at some time after birth that they have the ‘wrong body’. Their physical, psychological and social issues are entirely different from those of transgender persons. To appropriate their issues to the cause of transgenderism demonstrates both academic indolence and a self serving dismissal of their unique personal battles.
Also, if you would like to trot out some of the dubious ‘science’ that supposedly supports the notion of a ‘transgender brain’, I’d be happy to dismantle it for you, piece by piece. It requires a fair understanding of scientific method and statistical analysis, but I imagine you could readily familiarise yourself with that as well.
Finally, two things. First, could you please explain the Oscar Wilde quote? I thought about it, but I’m afraid I just don’t get it. Second, I know the ‘fox in the henhouse’ thing wasn’t your analogy, but you’ve perpetuated it, and the local foxes are mightily aggrieved by your blatant fox-phobia. How do you plan to appease them, because some of them identify as poultry and they’re considering an anti-discrimination claim?
Prisons are grotesquely underfunded, and from inspection reports it appears that issues of drugs, violence, and unfitness for human habitation are endemic. The “solution” to any issue of trans women offending in a women’s prison of thereafter excluding trans women is ridiculous, but should be seen in that context: you protect prisoners by properly funding and inspecting prisons. Addressing single incidents of violence without addressing that context is in bad faith.
Sorry, it just doesn’t ring true. Very odd arguments.
“Further, no attempt is made to differentiate the trans population.”
You don’t seem to have read the original FOI that was put in by fairplayforwomen and is available on their website. The MOJ confirmed that there are “there are no female-born prisoners in any male prisons. So this means that the 100 transgender prisoners confirmed by the MoJ to be living in the male estate must all be male-born inmates who identify as women. ”
The MOJ did not give the breakdown in how the 25 trans prisoners in the female estate identify as they don’t keep that data but you seemed to conveniently leave out another trans woman on the female estate accused of sexual assault by inmates, double child rapist Jessica Winfield
“If for no other reason, we know this because of a series of prosecutions brought against such individuals for non-disclosure of gender history prior to intimacy.”. What is the series of prosecutions, I have only heard of two, one was Gail Dines who does not refer to herself as transgender, the other was Carlos Delacruz but as that case was only decided last week and he could not be included in statistics for trans prisoners which was released months ago, who are you referring to?
” It might be said that no or few cis women (I am aware of none) have been placed in a male prison and therefore it is only trans women who pose a significant threat within the female estate” It is confirmed in the fairplayforwomen FOI (which I suggest should be fundamental reading for your article) that there are no women so dangerous that they are held in the male estate only transwomen.
“Trans women would account for only 1.75% of the whole. This does not mean we should ignore risks of harm. It simply illustrates the small size of the problem.” So 0.3% of the population are responsible 1.75% of the prison population and that is supposed to be a small problem?
The figures of 48% of trans women prisoners being sex offenders comes from the Ministry of Justice after the BBC put in a freedom of information request. The figures are half way down showing a near doubling of trans prisoners in a year to 125 enviously 70.
https://www.bbc.co.uk/news/uk-42221629
The British Association of Gender Specialists and the British Psychological Society have both warned the government that they believe many male prisoners are falsely claiming trans status to take advantage of the system. So your information is inaccurate. Two professional bodies feel the risk posed to women is real. How given this information do you not see the potential for abuse through any man able to self id as women through change to the GRC?
Secondly I fail to understand how you do not see that a trans woman with a penis poses exactly the same risk to women as any other male prisoner. There is no evidence to suggest that an intact male who self identifies as a woman has any change in risk. So do you then advocate for all men to access women’s prisons given they pose indentical risk? Are you suggesting mixed prisons are the way forward?
It strikes me that it is women who look to lose out in this arrangement. Women are less strong and smaller than males. They are also prone to getting pregnant. Do you think enabling pregnancies in prison is a good thing? More children being born in prison?
It seems that your desire to be right on has blinded you and you are denying the reality, denying biology and denying women’s rights to be incarcerated free from male sexual assault and intimidation. If you have any credibikity you must update your article to reflect the facts you have failed to research.
No penises in female prisons, please. Transwomen should be free from harm inside or out of prison, just like everyone else, but not at the cost of increasing the risk of harm to women. And no, I’m not going to accept the facile mantra that “transwomen are women” unless someone can come up with a decent non-circular definition of “woman” that fits the bill.
There are some fair points raised here by Bob and Mary in relation to stats in this thread. I have amended my article to reflect this and to ensure the FOI revealed stats are used for the purpose of calculations. As you will see however, it makes little difference to my overall argument, which I maintain. The amended article may not appear till next week as the person who uploads is away till then. No doubt, some of you will choose to focus on oversights and/or imagine conspiracies regarding a delay in reposting. I am familiar with the drill.
So disappointing. It is simply not true that ppl concerned with cases such as Karen White aren’t concerned with sexual violence perpetrated by women (or as you call them cis women). I have written extensively about women’s sexual offences. And I am concerned about the rush to transfer ppl who used to be men, who are now trans women, being transferred to the female estate. I also note, which you don’t, that Frances Croook of the Howard League for Penal Reform and Richard Garside of the Centre for Crime and Justice Studies, have both expressed worries about the rush to transfer trans women to the women’s estate.