Joint Committee On Human Rights Written Evidence

18.Submission from Yogi Amin, Solicitor

  The Draft Gender Recognition Bill certainly identifies and grants rights to transgender individuals to be accepted and certified in their new gender, however, the Bill does not address the legal issue concerning transgender prisoners. This is an omission I would ask the Committee to address in their recommendations.

  I present my submission in order to raise concerns over the absent legal framework that governs transgender prison inmates. The major difficulty for transgender prisoners, lies in the ability to undergo all the treatment whilst in a gender specific prison. This is of particular concern to me because I am acting on behalf of an individual, "X" male to female transgender prisoner, who presently wishes to undergo treatment for Gender Dysphoria. In order to do so, "X" requested to move to a female prison allowing her to live "in role" as a female—the necessary pre-cursor to allowing "X" to undergo gender reassignment surgery. The failure of the Secretary of State to provide an appropriate environment, resulted in Judicial Review proceedings and is due to be heard at a final hearing. The issues revolve around how the prison are able to provide the conditions required for "X" to progress through the "real life" test. This is not an isolated case.

  I will briefly explain the existing framework governed by the Prison Rules which offer no adequate protection nor guidance to the vulnerable inmates with gender identity disorder. Prison establishments are divided into male and female prisons. There is no prison or holding centres specifically allocated for transgender prisoners. Prison Rule[44]12(1) provides that women prisoners should normally be kept separate from male prisoners. Section 12 (2) of Prisons Act 1952 empowers the Home Secretary to determine the prison to which a prisoner is committed and to direct the removal of a prisoner from the prison from which he/she is held to another prison. That power is not wholly unfettered and in particular since the coming into force of the Human Rights Act 1998, that power should not be exercised in such a way as to violate rights under ECHR.

  The sex of the prisoner at the time of entry into a prison establishment determines that individual is placed within a male or female prison. This does not deal with the question of a transgender individual's change of gender identity whilst serving a sentence in the prison system. There are no settled guidelines on this point. This is of particular concern to transgender individuals in prison. I believe there are at least 80 individuals serving a sentence in closed conditions. A number of the prisoners will be serving long-tariff life sentences.

  As far as medical treatment is concerned, the Prison Service Standard on Health Services for Prisoners 1999 set the standard: "To provide prisoners with access to the same range and quality of services as the general public receives from the National Health Service"[45] Prisoners, referred by the Prison Medical Officer can seek appropriate treatment from the NHS. Gender reassignment treatment and ultimately reassignment surgery is available and funded by the NHS.

  Section 1(4)(b) Draft Gender Recognition Bill requires that for a certificate to be administered, the applicant must have lived in the acquired gender throughout the period of two years. Aetiology suggests it is also necessary for the individual to be tested in work and other environments in their new gender by medical professionals[46] The environment must allow for the individual to complete the "real life test". The requirement for interaction means that the individual cannot be isolated in a healthcare centre or segregated area and needs to interact with the main prison population and civilians. This is a challenge for transgender prisoners who have been segregated because they are unable to live securely and safely "in role" within those conditions.

  In the case of "X", it is difficult, if not impossible, for X to live "in role" as a woman in a male prison. The current conditions make it virtually impossible to complete the "real life" test of exclusive cross gender living. With the help of "X" and advice from a Consultant Psychiatrist and I have outlined a criteria that is considered reasonable so that one can live in "female role" and stand some chance of successfully completing the "real life test".

  The criteria to live "in female role" within a prison is:


    Private toileting, bathing and showering facilities.


    The ability to dress as a female including the application of make up in public.


    The ability to purchase toiletry items and cosmetics (which are not able to be purchased on normal location in a male prison).


    Assurances that if strip searches are required then these must take place in a private room with only female staff and a medical or nursing representative present.


    Transport should be provided to all appointments at the Gender Clinic or other centres (such as laser treatment centres and speech language therapy).


    Access to counselling.


    Ability to undertake work and interaction "in role".

  This criteria would alter depending on whether the individual was male to female or female to male. The criteria is not exhaustive.

  It is my considered view taking into account an expert opinion that this criteria provides for an appropriate environment and is the only way to successfully fulfil the requirements of treatment for "X"s particular condition of Gender Dysphoria. Predictably it is extremely difficult for male prisons, given the inability of the vast majority of the prison population, to sympathise with the transgender process. Under the present regime and current conditions, "X" has experienced degrading treatment, constant fear of attack and loneliness. If prison facilities do not provide the level of privacy required the individual will inevitably be subjected to humiliation, at risk of verbal and physical abuse at the hands of other inmates at the prison. To go through the daily processes required in the bathroom in full or partial view of men could well be considered degrading treatment.

  Article 3 ECHR states that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. This is a standard protecting transgender individuals that should be upheld. The State must ensure that detention conditions or any involvement with the prisoner is carried out with respect for human dignity. Likewise Article 8 ECHR secures the right to respect for private and family life. Article 8 has been interpreted in such a way that encompasses the right to personal autonomy and development and the right to develop one's personality and relationships with others. This extends to matters such as sexuality, disability and sexual identity. These are matters intimately connected with a person's identity, the way they define and develop themselves. Therefore, disallowing the prisoner the basic necessities and an appropriate environment to complete the "real life" living "in role", is a disproportionate interference with her rights under Article 8.

  Additionally if a male to female transgender goes through the medical and biological processes of hormonal treatment, she may grow breasts. Consequently special underwear will be needed. This is during the 2 year period in which they would be required to live "in role". Similarly, they may be required to carry out delicate body hair treatment. If the prison system and conditions make it impossible for these medical requirements to be met it follows from this that the individual is being denied the ability to access medical treatment and to live in the desired sexual identity. The applicant is denied right to progress in life.

  This is certainly a delicate issue: On the one hand the prison must ensure privacy, safety of the individual to be free from risk of harm from other inmates. On the other hand they must allow the transgender prisoner freedom to the extent that he/she interacts at a level and nature which complies with the "real life test" in an institution whose purpose is to restrict liberty. Such a balancing act is difficult to achieve. Security within a prison is a consideration but appropriate prison facilitates would be able to manage the above criteria. The balance can be achieved by ensuring that there are clear guidelines on placement of transgender in prison from initial diagnosis.

  Of principal concern is the difficulty in identifying at what stage can one ascertain a change in gender. It is clear that once gender reassignment surgery has been completed, one is deemed as "post operative transgender", thus a new gender then takes form. However, what about pre surgery? Surgery deals with the physical aspects of gender identification, however, it does not deal with the psychological or mental aspects. In Corbett v Corbett[47] Ormrod J regarded sex to be determined by his physical biological characteristics. However, this approach is now outdated when taking into account modern medical theory and evidence. The President of the Family Division, Dame Elizabeth Butler Sloss accepted the advances in medical views in this area in the case of Bellinger[48] This evidence was referred to in I v UK[49] as "indicating a growing acceptance of findings of sexual differences in the brain that are determined prenatally, though scientific proof for a theory was far from complete"[50] I believe that as the medical evidence has allowed us to move away from the biological approach of Ormrod J in Corbett and the court has moved towards the view that a more general number of factors have to be taken into account it would be correct to do away with the reliance of gender reassignment surgery as the factual defining line. Gender rearrangement (or reclassification) can be ascertained in special circumstances, such as prisoners by the applicants psychological appearance. This would involve initial diagnosis on entry into the Prison system by the relevant expert.

  I believe it is arguable that prior to the gender reassignment surgery the individual can be considered to be of the sexual identity that he or she believes they are. The draft bill recognises that a certificate can be issued pre surgery but still requires the 2 year real life test to have been undertaken. I believe the bill should provide for an initial assessment process specifically for transgender prisoners. This initial assessment process would involve medical assessment and panel consideration of whether the prisoner in question was diagnosed with Gender Dysphoria. If so an assessment certificate can be issued by the panel. This would allow them access to benefit from an accepted criteria whilst residing in a prison. That criteria would allow conditions for prisoners to progress through the "real life" test. The bill would go on to describe the accepted criteria for a prison environment. The prisoner can then return to panel on completion of the "real life test".


    —  I submit that transgender prisoners should be exempt from the cost of application.

    —  I submit that medical reports should be provided by specific medical practitioners appointed by the government department and transgender prisoners be exempt from the cost of preparing medical reports.


  I submit that an applicant should have available an appeal from the decision of the Gender Recognition Panel (at all stages where no other appeal/review is available) to the High Court.


  I believe that this issue of transgender inmates can only be effectively dealt with if there is statutory provision for an initial decision on diagnosis to certify transgender prisoners. This will allow access to appropriate criteria creating an environment where they are able to progress through the "real life" test. There can be an extension to the Prison Rules to refer to the specific criteria. There is certainly a need for statutory guidelines for prison authorities on the treatment and care of transgender individuals in prison. This would allow pre operative male to female transgender moving from male to female institutions. This should not be ruled out as a possibility and the Prison Rules, Orders and legislation should not be, I believe, be a bar to flexible exercise of discretion.

  I believe this is essential so as to provide protection to the small minority of transgender individuals who have a recognised psychological disorder to be allowed to progress and access to made available medical treatment. The result of society's acceptance of transgender, is that all administrative practices in society must be revised to facilitate the minority's integration and functioning in society, free from discrimination.

  In the context of transgender it is clear that one's sexual identity is a significant feature of one's private life—a clear defining feature of one's self which is a basic fundamental right.

11 September 2003

44   Prison Rules 1999. Back

45   In 1996 the Chief Inspector of Prisons in a discussion document Patient or Prisoner November 1996. Chief Inspector of Prisons Sir David Ramsbottom, recommended that the responsibility for prison healthcare be taken over by the NHS. The latest report Chief Inspector of Prison-(2000-02)-Anne Owers confirms that steps are being taken towards this goal and certainly the transition is taking place. Back

46   See Department, of Health NHS guidelines Dr Joyce Martin 23 July 2002 and Aetiology of Gender Identity Disorder. Back

47   Application no. 25680/94; judgment delivered 11 July 2002. Back

48   2001 EWCA. Back

49   [1970] 2 WLR 1306. Back

50   ibid, paragraph 62. Back

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