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Why Are Trans Women Being Sent to Male Prisons in the UK?

Yesterday, news broke of a trans woman who killed herself in an all-male jail in Leeds, England. We spoke to lawyers and trans rights activists about what can be done.

by Sirin Kale
Nov 20 2015, 7:00pm

Photo by Good Vibrations Images via Stocksy

Vicky Thompson committed suicide exactly one week ago today. The 21-year-old British trans woman had been sent to a male prison in Leeds, England, despite pleas from her lawyer that she be recognized as a woman and treated within the justice system accordingly. According to reports, Vicky was said to have told her friends that she would "kill herself" if she was sent to a male jail while serving her 12-month jail term.

News of her death broke on Thursday night, a few hours before the start of Transgender Day of Remembrance today. Broadly spoke with trans activists and legal experts to understand the issues that trans women can face within the British penal system.

Read More: A Crisis of Violence: Transgender Murders Increased 84% This Year

Sarah Bourke is a barrister who lectures in gender equality law and specializes in the rights of transgender prisoners. "Under custodial rules, the usual position is that is that an individual is placed in the prison that is appropriate for their legal sex," she explains. "This can pose issues for trans people, because in the UK, legal sex is determined by whether you have a gender recognition certificate."

In the UK, trans people have to apply to have their legal gender (as stated on their birth certificate) changed by means of a gender recognition certificate. When in possession of the requisite certificate, according to official government guidelines, trans prisoners will normally be sent to the prison of the gender with which they identify.

As Bourke explains, many trans people don't have the certificate. "You don't need a gender reassignment certificate to change your passport or your driving license, so many trans people don't have them," she says. "Then they hit the prison system, and even though they're living their life as one gender, to all intents and purposes, the prison system will view them as the other, because they don't have the right piece of paper." Additionally, you have pay £140 (approximately $213) to apply for the certificate in the first place, a sum that some trans people may not be able to afford.

Tara Hudson, another trans woman who didn't have a gender reassignment certificate, recently made headlines in the UK after she was mistakenly sent to a male prison. I spoke to Hudson's lawyer, Matthew Graham, to find out more about her case.

"Tara presented as female throughout the whole legal process, and we had every expectation she'd be sent to a female prison," he says. "When that didn't happen, we launched an appeal to overturn her conviction on the basis she shouldn't be in prison at all."

In Graham's view, the system needs changing. "The problem is that the prison service only begins to decide what prison a person should be sent to after that person has been given a custodial sentence. In my view, that process should begin much sooner to ensure that we don't have the sorts of mistakes made that were made in Tara's case."

It's like throwing Christians to the lions, sending vulnerable people into the wrong prisons for their gender.

Whilst Hudson was moved to a female prison after public outcry, Graham tells me that the "experience she had in custody for the week she was there was very harsh indeed." Aside from the fact that evidence shows prisoners are most at risk of self-harm and suicide in their first few days in custody, that Hudson even spent a week in a male prison in the first place demonstrates the real issues that trans people face within the British penal system.

Both Hudson's case and Thompson's tragic death have galvanized the trans activism community to push for reform. Heather Ashton of transgender support group TG Pals explains: "We need an urgent review of the penal system, because people are dying. It's like throwing Christians to the lions, sending vulnerable people into the wrong prisons for their gender. A person's genitals or how far along they are in their transition shouldn't determine what prison they belong to. It's how they present and how they live their lives that should be the dominant factor [in sentencing]."

Read More: The Murder of Keisha Jenkins and the Violent Reality for Trans Women of Color

When I called the HM Prison Service for a statement on Vicky's death, a spokesperson told me that "as with all deaths in custody, there will be an investigation by the independent Prisons and Probation Ombudsman." But what can be done to help get other trans people who've been sent to the wrong prison?

"You can request to be moved, and this initiates a case conference system which looks at a range of different factors, such as how you identify, how long you've lived as that gender, medical evidence, [as well as other factors like] risk assessments," Bourke explains. "But the problem's that the prison system moves slowly, and you're also putting the emphasis on that prisoner to request a transfer—which is a lot of pressure for someone who's already in a stressful situation by virtue of the fact they're in custody."

In some cases, the length of time needed for transfer approval means it's not worthwhile to apply. "You might be days from release before you get the transfer," Bourke says. "And even if you are being transferred, there are other issues a trans person might face. For example, if there are security concerns with a trans woman being placed in a female prison—perhaps because she committed sexual offences against women—then she may have to be kept in segregation from other prisoners. And the use of segregation seriously messes with people's heads. It's very isolating, and [they become] very vulnerable."

Thompson's death has brought renewed attention to the dangers and risks that trans people face within the custodial system. Everyone I interviewed for this piece agreed that the use of gender recognition certificates needs to be reviewed to ensure more trans people aren't placed at risk.

The prison system has a responsibility to keep people safe. Putting someone in the wrong place is fundamentally unsafe.

"From a legal point of view, we need a greater emphasis on how the individual identifies [when sentencing them]," Graham says. "The prison system has a responsibility to keep people safe. Putting someone in the wrong place is fundamentally unsafe."

Ensuring the safety of trans people within the prison system is particularly difficult. Bourke has specialized in representing trans people throughout her legal career; she warns that "although all prisoners are vulnerable by virtue of being in the custodial system, trans women are a particularly vulnerable group. Being in custody, undergoing transition and being in a male environment, especially when you're a young woman as Tara and Vicky were—that's a lot to handle."

Ultimately, the hope is that other trans women won't have to suffer the same experience that Thompson and Hudson endured. A petition to allow transgender people to self-define their legal gender—without the need for a gender recognition certificate—has attracted over 30,000 signatures. And the British government today stated that they intend to look at how trans people are treated in custody, as well as publish data on the number of transgender prisoner and their experiences. For Thompson's family and friends, it comes as too little and too late.

"I really think, in ten or twenty years time, we'll look back at these cases—cases like Tara's, and Vicky's —and we'll view them how we saw apartheid in the eighties or racism in the seventies," Graham says. "As just totally wrong, in every way. What's the point in having laws if they don't protect people?"

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