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:
(a)
Private toileting, bathing and showering facilities.
(c)
The ability to purchase toiletry items and cosmetics
(which are not able to be purchased on normal location in a male
prison).
(d)
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.
(e)
Transport should be provided to all appointments
at the Gender Clinic or other centres (such as laser treatment
centres and speech language therapy).
(f)
Access to counselling.
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".
COSTS
— 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.
REVIEW
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.
CONCLUSION
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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