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fullsizeoutput_639Professor 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.

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Kyle L Murray & Tara Beattie are both PhD candidates at Durham Law School.

The Case

Gayle Newland’s case is likely not news to many – her retrial and conviction for sexual assault of a female friend has attracted wide-ranging media coverage. This is perhaps no surprise, given the numerous case-elements which challenge typical expectations of the nature of sexual assault, and the profile of an offender. As the Telegraph reports, “a woman who preys on another woman confounds expectations” – the public often picturing sex offenders “as seedy men who lie in wait for strangers.” But so too does the nature and extent of the deception surrounding the assault. The victim believed that she was in a romantic, sexual relationship with a man named ‘Kye’ – a false persona created by Newland. Although the two met, ‘Kye’ was never seen in person, with the victim being requested to wear a mask during their meetings, on account of supposed embarrassment at a disfigurement. When together, Newland carried out sexual acts using a prosthetic penis, and forbade the victim from touching her.

The case raises ethical and legal considerations surrounding deception, identity and consent. For some, Newland’s conviction is a worrying reflection of the state of gender and consent in criminal law, and something which could have repercussions for the LGBTQ community. For others, those voices do not fully acknowledge the damage caused by building a relationship upon lies.

For two law researchers, with respective backgrounds in moral scepticism and sexual privacy, this was the topic of an afternoon conversation which proved troubling to both parties. Our full commentary is provided in in dialogical form here. A summary of the issues discussed is provided below.

Trans rights, deceit, and bodily autonomy (more…)

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Alex Shar10689909_1016854768344392_8793741729286128967_npe, Professor of Law at Keele University and barrister at Garden Court Chambers, London. Twitter handle: alexsharpe64

We are familiar with opposition to rights acquisition by sexual and gender minorities, at least when it comes from socially conservative and/or religiously moral quarters. Yet, in our topsy-turvy world, it is elements of the liberal or libertarian left that increasingly appear to block the way. In this article, I will consider this disturbing tendency through the example of the recent announcement of the Equalities Minister Justine Greening that the government intends to liberalise legal arrangements governing legal recognition of gender identity.[1]

This reform proposal has led to sustained criticism from several leading liberal or libertarian political journalists. Thus it has been criticised by Brendan O’Neill, editor of Spiked Magazine,[2] and by Helen Lewis, the deputy editor of the New Statesman.[3] In this article, I want to take to task the central objection each raises. O’Neill objects to what he views as the re-writing of history regarding the ‘facts’ of gender. For her part, Lewis imagines all manner of harmful consequences that reform may produce for cisgender women. In O’Neill’s case, existing legal arrangements, as well as proposed reform, appear to represent an affront, while Lewis focuses on potential harms which she links to expanding the pool of people able to receive a Gender Recognition Certificate (GRC).

I will argue that O’Neill’s objection is based on a mistaken view of history, of historical analysis, of the doing of history. Conversely, Lewis’ claim is an empirical one, but one utterly lacking in evidence. What unites both is fantasy. Lewis’ imagination runs amok, sensitising the public to the possibility that one of the most marginalised and vulnerable groups in society (trans women) might, if permitted to pee in female bathrooms, have recourse to female refuges and/or be allocated to a gender-appropriate prison, prey on cisgender women. In a different register, O’Neill invokes the cultural power of Orwell and points to the dystopia he believes reform will inevitably deliver. (more…)

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Professor Alex Sharpe, Keele University10689909_1016854768344392_8793741729286128967_n

Today, at Manchester Crown Court, Gayle Newland was, after a second trial, convicted of three counts of the sexual offence of assault by penetration,[1] on the basis of ‘gender identity fraud.’[2] After serving eleven months of an eight year sentence, the Court of Appeal set aside her original conviction in 2015[3] because they found it to be ‘unsafe’ due to the summing up of trial judge, Roger Dutton.[4] In my view, prosecutions of this kind should not be commenced. My reasons for taking this stance include, but are not exhausted by, opposition to criminal law overreach (criminalisation of non-coercive, desire-led intimacy constitutes a step too far), and concern over legal inconsistency (contrast prosecution of gender non-conforming people for sexual fraud with the fact that deceptions, for example, as to wealth, social status, drug use, criminal convictions, religious belief and/or ethnic status produce no legal consequences), and discrimination (‘gender history’ is not only singled out for special legal attention, but it is the gender histories of LGBTQ kids, rather than people at large (for we all have gender histories), that appears to exhaust state interest in historical facts about gender). (more…)

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Kate Gleeson

Dr. Kate Gleeson, Macquarie University, NSW, Australia

The Australian Royal Commission into Institutional Responses to Child Sexual Abuse is in its closing stages, preparing its final report due at the end of this year. The Royal Commission was established in 2013 in response to allegations of cover-ups of child sexual abuse in religious and secular institutions.

The Commissioners have since embarked on an extensive project of truth recovery and restorative justice, investigating the organisational practices of institutions ranging from dance schools, swim schools and yoga ashrams, to schools, Churches and orphanages of different denominations, although most allegations concern the Catholic Church.

Throughout the past four years the Royal Commission has held public hearings into more than 40 investigatory case studies, and conducted over 6700 private hearings for survivors to tell their stories unchallenged. Another 2000 private sessions are scheduled before the end of the year. Information gathered in hearings is believed to have led to at least 120 prosecutions of historical child sex offences across the country. (more…)

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IB imageSnapshots of law, gender and sexuality news from the past couple of weeks.

The LGBTQ+ Community and “Gay Conversion Therapy”

William Lee, University of Manchester

Malta made history on the 7th December 2016 when the Maltese Parliament unanimously approved the Affirmation of Sexual Orientation, Gender Identity, and Gender Expression Bill. Among other things, the Bill criminalises “gay conversion therapy”, giving legal recognition that for the position that “no sexual orientation, gender identity or gender expression constitutes a disorder, disease or shortcoming of any sort”. This thereby relieves the LGBTQ+ community of potentially being subjugated to any “deceptive and harmful” act designed to change their sexual behaviour or gender identity.

The new Act in effect positions Malta as the first European country to ban “gay conversion therapy”.

The Business Insider states that Malta has been at the forefront of progressive social reforms in Europe since the Labour government was elected in 2013. For that, Malta quite comfortably deserves its ranking of being the best European country for LGBTQ+ rights as deemed by the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA- Europe).

In light of such radical progress in Malta, this post will look briefly at the origins of “gay conversion therapy”. It will also briefly outline the United Kingdom (UK) and American’s current stance in regard to this practice. (more…)

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Twitter Clamps down on Abuse and Hate Crime

Ama Williams, Newcastle University

Online abuse on social media platforms is endemic. The majority of people who frequent social media will have either seen or been the victim of some form of abuse. Last week Twitter introduced provisions to try and tackle online abuse and instances of hate crime – that is, abuse targeted toward someone because of their membership of a particular social group. It has now added ‘Advanced Muting Options’ to the previous option to mute accounts. This means that a user can block certain words or phrases from appearing in their personal notifications, in the hope that this will shield the user from abuse being targeted specifically at them. However there is some concern that these measures do not actually stop hate speech being posted and due to the anonymity Twitter affords to its users, abuse may continue to be prolific.

Recent reports have shown that abuse online is on the increase. Pink News reported that there has been an online spike of homophobia since Donald Trump’s victory in the presidential race. In one instance a homophobic word increased from being tweeted 8,000 times to 32,000 times in the day after his win. In England, abuse of women in positions of power is inherent on many platforms but social media seems to breed particularly depraved forms of hatred. (more…)

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