A closer look at the new prison guidance

For those interested in reading the actual new guidance, it’s available on the Prison Service Web Site now. And for those for whom this is all TL;DR, the summary is: It’s generally a good document that falls into the two common traps with such things. Firstly, the assumption that the NHS is always right and secondly, that you can magically determine someone is trans just by looking at them without ever making a mistake.

I shall start, which is all too common, by correcting two errors that have appeared in the press. Firstly, this guidance is from the National Offender Management Service (NOMS) and only bears the Ministry of Justice logo because NOMS is part of the MoJ. As a result, it does not apply in Scotland or Northern Ireland. It has been pointed out to me by one reader that when I’d previously suggested there was draft guidance in place in the case of the trans woman in a Scottish jail, I was incorrect as the draft guidance doesn’t apply there.

Secondly, this does not apply to “cross dressers”, “transvestites” or any other term the Daily Mail might want to use to stir by imply it’s related to anything other than gender dysphoria, a recognised medical condition. (I have no idea if there’s a possible Press Complaints Commission complaint in there, but I suspect not)

Beyond that, as I suspected much of what is in the new guidance isn’t news as it doesn’t vary much from the draft guidance, which I’ve written about before. Oh, and, surprise surprise, the Daily Mail have written about before too so it’s not new to them either.

It has the same problems as before, with an effective ban on treatment while on remand waiting trial. However, other areas have improved greatly and that this area has not changed makes me suspect that there is a genuine logistical problem here rather than a lack of desire to fix things. (The average time spend on remand appears to be about 2 months) There’s also the assumption that a prisoner be held in the prison appropriate to their “legal sex”, i.e. based on presence of a GRC but this is much weakened compared to previous drafts and there is much more scope for someone to be transferred early.

Interestingly, there is already a provision for the most problematic female prisoners to be held in male prisons under certain guidelines and this is mentioned, although only on the understanding that it can only be used for transwomen in the same way as it is for ciswomen. This hopefully means that any claims that a violent prisoner might transition to cause trouble can be easily rebuffed, as they can end up back in a male prison. (Presumably alongside the most problematic female prisoners, which probably isn’t much fun)

Transmen can never be refused a request to relocate into a male prison, although it is explicitly acknowledged that many, in particular those who have not undergone full bottom surgery, may prefer to remain in a female prison due to the risks. A completely non-scientific survey of a handful of trans men who are friends of friends and have been in prison suggests that most trans men would choose to remain in female prisons. Presumably they could still be transferred against their wishes into a male prison in the same way that a cis woman can, but that isn’t addressed.

But one item jumps out as immediately problematic. There is a general ban (Section 1.10) on new or continuing private treatment that has to be for “demonstrable clinical reasons” and not based on “uninformed personal choice”. I suspect the majority of trans folk who end up in prison simply cannot afford private treatment anyway, but for those than can I suspect “the NHS won’t treat me” won’t be regarded as a good enough reason. In general, although a good policy, the document has a slightly confused mix of ideas about NHS versus private treatment, long-term transitioners and the practicalities of the laws and could probably do with a couple of cycles of revision.

In terms of treatment, the one year real-life-experience guideline prior to surgery is mentioned, but given there’s little possibility of private treatment, two years is the norm in England, with Wales being pretty much never. It goes on to say that it’s “essential” that someone planning on surgery undergo counselling for the “up to two years” wait. This fails on two counts. Firstly, you’ll be very lucky to get surgery within two years of commencement of RLE on the NHS. Secondly, the need for counselling is a medical decision. How essential it is in an individual case is a medical decision and does not belong in a Prison Service document.

For the long term transitioned, there’s an assumption that you’ll still be “high risk” and need special care. Personally, if I ended up in a prison now then I would not expect (Nor particularly want, I guess) that sort of special treatment.

And finally, there are some good points on the Gender Recognition Act, stating that staff should ask for a birth certificate and that you can’t request a GRC if someone was born in the UK. (Although one is acceptable if produced one instead of a GRC) For those that can’t produce a BC or GRC, you’re assumed to be your “birth gender”, although there’s no discussion of how to establish “birth gender” and as with police codes on searching, it could end up with some cis women, particularly lesbians, being treated initially as male if they can’t produce a BC as any physical examination to establish gender is, quite rightly, banned. Apparently, you are allowed to ring the Gender Recognition Panel and give them your “password” to allow them to reveal details to the Prison Service. I have no idea what my “password” I supplied when applying for a GRC is and I suspect I’m not alone in this and it still doesn’t help cis folk mistaken for being trans.

11 comments

  1. It also looks like it dosen’t help people who have had surgery but are not yet able to qualify for a GRC.

    1. It helps in terms of clothing etc although not with being in the “right” prison. It’s possible to get transferred earlier if a case conference agrees – see Annex D. (I suspect it depends on how well behaved you’ve been)

      In practice, if you’re on NHS treatment however you’ll usually get a GRC before surgery!

  2. Louise is correct. That includes all transitioned Intersexed women (excluded from a diagnosis of Transsexuality under the ICD-10), plus all women married before transition and unwilling or unable (as in the case of some expatriates) to divorce. Even if they have to see an OB/GYN for checkups.

    Genital reconstruction should not have been deemed a necessary pre-condition for change of legal status: but it should certainly have been deemed sufficient.

    1. Interestingly, the earlier draft of this document referred to those with gender dysphoria, so would not have covered Intersex folk at all. I suspect the intention is not to cover this area – I’ll put in a FoI request. (It’s pointless just asking, they never respond)

      Interim GRCs are mentioned and there’s certainly a bias towards assuming someone with an IGRC should be treated the same as someone with a full GRC, although it would be better if it was explicitly stated that for the purposes of the Prison Service, IGRCs and Full GRCs are functionally identical.

    2. Exactly it’s absurd that even though I will have had genital surguery in may this year I will still have to wait another year to be classed as legally female.

    1. Divorcing or annulling an existing marriage would typically mean any foreign leave to remain becomes invalid.

      (Thank you for mentioning that – I’ll add it to the list of things to include in the Marriage Equality consultation response!)

  3. Hi Zoe

    You may know that a Brit living in some parts of the US could, if a US citizen, have a new BC on gender change and remained married to their US spouse. Alas, that Brit, to get a new UK BC, has to end the marriage and then cannot re-create the previous US marriage.

  4. And according to this draft someone in my case wouldn’t get consideration as they woudn’t be in a position to get a GRC having not lived fulltime for two years.

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