The Ministry of Justice and Her Majesty’s Prison and Probation Service have released a collaborative review of self-inflicted deaths in prisons across England and Wales in 2016, highlighting the prevalence of self-harming and suicidal behaviour.
January 2017 saw Dr. Phillip Lee, the then Parliamentary Under-Secretary of State for Justice, pledge to undertake this internal review with a particular focus on mental health problems as a contributing factor to prison suicides.
This was as a response to questions by former shadow mental health minister, Luciana Berger, surrounding the tragic death of Dean Saunders, who took his own life in 2016 whilst incarcerated in HMP Chelmsford. Despite being in the midst of a mental health crisis, Saunders was detained in the prison after a bed in a secure psychiatric hospital could not be found.
The Howard League for Penal Reform found that in 2016, the suicide rate in prisons was approximately ten times higher than in the general public.
In light of the increasing concern for the rising incidents of suicide and self-harm in prisons, the document by the Ministry of Justice and Her Majesty’s Prison and Probation Service cites “to make prisons safer” as the catalyst for the review. From being a childhood sexual abuse survivor to serving a long-term to life sentence, the review highlights the significance of many imported vulnerabilities, environmental triggers, and custodial factors that increase the risk of self-harm and suicidal behaviour. Not only are these risks identified, but information concerning the practical implementation of strategies to control them are identified.
And that’s great. But the review fails to mention perhaps the most vulnerable group: transgender people.
Outside of prison: suicidality and self-harming behaviours in the transgender population
Outside of prison, research has shown that the general transgender population is at an increased risk of suicide, with 84% and 50% having considered and attempted suicide respectively. Figures also show that 53% of transgender people have self-harmed at least once. Suicide attempts within the general population have been estimated at 1 in 15, meaning that a transgender individual is 7.5 times more likely to attempt suicide than someone who is cisgender (a person whose gender identity matches their assigned-at-birth sex).
65% of transgender people who had thought about or attempted suicide named "trans-related issues" as a reason, encompassing the following concerns:
Given that both incarceration and being transgender make a person more at risk of suicide, transgender prisoners are doubly vulnerable. This vulnerability is increased exponentially by housing them in prisons with their biological sex rather than their gender identity.
New guidelines for transgender prisoners
New policy guidelines on the treatment of transgender prisoners were published by the National Offender Management Service (Now called Her Majesty’s Prison and Probation Service) in 2016, being implemented from the beginning of 2017. These new guidelines were formulated in response to the increasing numbers of suicides in the transgender prison population.
The guidelines state that a dialogue about a prisoner's gender identity should be opened at the first point of contact to "inform assessments and decisions where binary (male/female) services for offenders are required. Where legal gender cannot be determined, staff must use the best information available and consult with equality leads where necessary."
Whilst the prison system still conforms to a binary conception of gender at a structural level, the guidelines recognise that identifying as male or female are not the only transgender identities. This acknowledges the transgender identities (and therefore increased risk of suicidality and self-harm) of non-binary, gender fluid, agender, and other gender non-conforming people.
For transgender people to be housed in a prison that corresponds to their gender identity rather than their assigned-at-birth sex, they must either have a Gender Recognition Certificate or be able so show evidence of pursuing a permanent "actual life in the gender with which they identify”.
So, transgender prisoners have to pay to apply for a certificate validating their gender that is only awarded if a panel who never meets them consults on, or they provide evidence of their "actual life" as their gender.
The reference to “actual life” in the policy undermines those who are not "out" as transgender, or are still getting to grips with their gender identity. This conceptualises gender identity as being merely performative, instead of something integral to a person’s sense of self. It fails to recognise the distress that often comes with the decision to be “out” as trans, and takes doing so as an indicator of someone’s “commitment” to being trans.
To be regarded as their gender, transgender prisoners must prove their transness.
Transgender prisoners are being doubly punished
The Ministry of Justice "Review on the Care and Management of Transgender Offenders" states that "it will be necessary to factor-in the impact on and risks to those in current or potential establishments especially, for instance, in the women’s estate where many prisoners will have been the victims of domestic violence or sexual abuse and may continue to be exceptionally vulnerable.” This suggests that transgender women may not be allowed in female spaces for the safety of vulnerable females, a view propagated by "Trans Exclusionary Radical Feminists" (TERFs). TERFs refers to people who believe that transgender women should not be allowed in women's only spaces, a view that encourages a fear of transgender women and suggests that they are not, in fact, “proper” women.
In relation to pre-operative transgender women who have committed sexual violence against other women being housed in male prisons, a spokesperson from the Ministry of Justice says that "if someone’s transgender we have to account for sex character, but also we have a duty of care to protect other prisoners from harm as well.”
This logic suggests that the Ministry of Justice believe sex offenders should be incarcerated in prisons for people with different genitals to their victims. In this way, one would expect that male offenders who have committed male-on-male rape would be held in female prisons. Yet this simply does not happen. So, why does the prison system view transgender sex offenders as more of a risk to other prisoners than cisgender sex offenders?
Regardless of whether their crime was sexual or not, transgender prisoners being held in prisons that are for people of a different gender are being doubly punished. Prisons should punish people by depriving them of their liberty: not by denying their very identity.
Transgender prisoners are being punished both for their actual crime and the crime of transness.
A simplistic view of gender identity
Within the new guidelines is a fundamental inaccuracy - transgender people are conflated with cross-dressers.
Whilst cross-dressing and being transgender are not mutually exclusive, people who cross-dress - but are not transgender - do not identify as a gender that is different to their assigned at birth sex. "If your gender changes (for example, if you cross-dress or change your dress between male and female)", the policy reads, "a security assessment will be completed".
“Most prisoners are men and dress as men. The new policies are about how prison officers can support people who don’t want to dress as men”, says a spokesperson from the Ministry of Justice.
If only gender identity was that simple.
In the same vein, the guidelines configure gender identity as being solely performative.
Prisons must allow transgender people to express their gender identity in their presentation through the likes of clothing, hairstyles, prostheses, and makeup. Perhaps arbitrarily, a distinction is made between these so-called "minor changes" and a "more profound" expression of gender identity. By "more profound", the policy lists heavy makeup and wigs as examples, giving staff the authority to undertake a security assessment and to take an additional photograph of the person.
The policy reads that "transgender prisoners may use make up to present more convincingly in the gender they identify with", stating how "make up that is vital to presenting in the gender identified with, such as foundation to cover facial hair, may not be restricted". This assumption that all transgender people desire to conform to traditional societal indicators of either femininity or masculinity is problematic to say the least, but that's a conversation for another time.
It's all very well that prisoners are often allowed to exhibit traditional visual indicators of gender identity, but that does not address the fundamental fact that they are often held in a prison that does not correspond to their gender identity.
The death of Vicky Thompson
21-year-old Vicky Thompson, a transgender woman, repeatedly told prison and court staff that she would be "carried out in a box" if she went to a male prison. Yet, she was sent to a male prison, dying by suicide alone in her cell on 13th November 2015. It was not that authorities were unaware of her suicidality. Rather, they failed to act on it appropriately with the seriousness that her vulnerability demanded.
Her death was before the new policies on the treatment of transgender prisoners were implemented.
An independent investigation into her death noted that Thompson expressed the ways in which she suffered with the "trans-related issues" that 65% cite as provocation for their self-harming and suicidal behaviours. Living in a male prison exacerbated her gender dysphoria, and being deprived of the tools that would ordinarily help to lessen it reinforced these feelings of distress. The inquest's assertion that she "felt ugly as she had no make-up and could not style her hair properly" understates the extremely distressing effect of the dysphoria-inducing conditions she was forced to be in. Thompson was also denied use of a razor and hair dye that she felt affirmed her female identity: another way in which her dysphoria was increased, forcing her to live with "hating her face" because she "looked like a man." This is in no way a matter of mere vanity, but a denial of her very being. Whilst Thompson was finally given a few of the items she requested, this wasn't until hours before her death. The investigation into her death also noted that she had been misgendered by staff both in person and in written records a number of times.
Thompson feared sexual assault which she had previously been subjected to during another sentence in the prison, and transphobic bullying was rife. Frequently receiving unwanted sexual solicitations and being at the receiving end of bullying, it's clear that this was the wrong environment for an already extremely vulnerable woman. Little was done in response to Thompson's mistreatment whilst in prison; a security report was not completed after she reported bullying, and neither were victim support proceedings carried out.
New policies do little to safeguard transgender people
Whilst Thompson's death brought the problems faced by transgender women in male prisons to the attention of the mainstream media, it does not appear that the new policies even protect such people against these issues. Under the current policy, there are still transgender women in male prisons, and being allowed to present themselves visually as a different gender does not counteract this.
According to a report on Transgender Equality ordered by the House of Commons, there is no reliable data about the numbers of transgender people in the criminal justice system. Whilst the number of transgender prisoners in UK prisons is unclear, what is clear is their risk of suicide when they are denied a place in a prison corresponding to their gender identity.
From Prisoner Y in 2012, to Joanne Latham in 2015, to Jenny Swift in 2016, to Jade Eatough in 2017, the number of transgender women who have taken their own lives whilst being incarcerated in male prisons in significant Transgender women are women, yet the prison system fails to fully acknowledge, accept, and act upon this.
In 2015, the plight of Tara Hudson - a woman in a male prison in Bristol - garnered widespread media attention. A petition to have her moved to an appropriate prison for her gender was signed by over 150,000 people, with Tim Farron, the then Liberal Democrat leader, backing her. She was eventually moved, but the damage had been done. "I felt like an animal in a zoo", says Hudson, and she is in the process of suing the Ministry of Justice for her mistreatment.
August 2017 saw Jade Eatough, a transgender woman, take her own life in a male prison. Her death was eight months after the new policies were introduced, calling their effectiveness into question. Eatough's death is shrouded in mystery, with few details being made public. As of November 2018, there is no evidence released publicly of an inquest into her death. All we know is that she was not on suicide watch.
The Ministry of Justice and Her Majesty’s Prison and Probation Service claim they want to make prisons safer for prisoners, but in the report is a tacit assumption that said prisoners are cisgender.
In two separate reports commissioned by the House of Commons, this failure to act upon the known risk of suicidality in transgender prisoners is evident: one acknowledges the vulnerability of them, and the other deems it "unacceptable that deaths by suicide continue to occur for people who are known to be at high risk". Transgender people are known to be at high risk, yet their deaths by suicide under the care of the prison service continue.
When invited to comment on the unsatisfactory policy, the spokesperson from the Ministry of Justice reiterated to me that that the policy is not meant to be highly academic theory - as if that excuses its shortcomings.
“I’m simply saying that someone in prison is dangerous”, he told me. If someone who represents the Ministry of Justice has such a simplistic and offensive view of people in prison, then their failure to understand the nuances of transgender issues is hardly surprising.
I am left with more questions than answers:
Can unsatisfactory policies facilitate good practice? When will the prison service act upon the vulnerability of transgender people with the seriousness, sensitivity, and respect that they deserve? Is it even possible for a structurally binary prison service to be inclusive of gender non-conforming people?
"Our prison system is broken for trans people", claims Lisa Harrison, the mother of Vicky Thompson.
She's not wrong.