On July 2, 2021, the High Court of England and Wales handed down its judgment in R (on the Application of FDJ) v. Secretary of State for Justice (Decision), which ruled on the lawfulness of the Ministry of Justice’s (MOJ’s) policy of allocating transgender women who have been convicted of sexual or violent offenses against women to a women’s prison.
Background to the Case
The plaintiff, who served a term of imprisonment between 2016 and 2020, asserted that in August 2017 she was assaulted by a transgender woman prisoner. (Decision ¶ 2.) The plaintiff brought a judicial review against two of the MOJ’s policies regarding transgender prisoners, seeking to have the policies declared unlawful in whole.
The MOJ’s Care and Management Policy “provides direction in the support and safe management of transgender individuals in prison, including managing risks both to and from transgender individuals” (¶ 1.1), and asserts that individuals who have gained legal recognition of the gender with which they identify “must be treated in accordance with their legally recognized gender” (¶ 2.3). The E Wing Policy (applicable only to HMP Downview) states that “transgender women who have been assessed as presenting a high risk of harm to other women” will be placed in the E Wing of the prison (a wing separate from the general prison population). (¶ 1.1.) The plaintiff argued that transgender prisoners on the E Wing participated in activities within the general prison population without supervision. (Decision ¶ 44.)
The plaintiff’s judicial review was based on two grounds:
(1) The policies are unlawful as they discriminate against women contrary to article 14 of the European Convention on Human Rights and section 19 of the Equality Act 2010—both of which prohibit discrimination (direct or indirect) on the basis of sex. (¶ 41.) They are discriminatory because placing transgender prisoners in the prison corresponding to their gender identity carries an increased risk that negatively effects women but does not have a comparable impact on men due to the vulnerability of women and increased risk of sexual assault. (¶ 52.)
(2) The MOJ in formulating the policies failed to take into account a material consideration—namely that the exemptions for single-sex accommodation and the provision of services under the Equality Act as well as the policies are unlawful because they mistake the law. (¶ 41.)
Regarding the first ground, the MOJ argued that the policies “implement a fact-sensitive approach to the balancing of competing interests in a difficult area.” (¶ 54.) Further, the policies do not give rise to any discriminatory effects on women, and there is no statistical case that transgender women prisoners pose a disproportionate risk of harm to non-transgender female prisoners. The MOJ also argued that, even if there were a risk of harm, the policies would not be unlawful “because they provide for risk assessment on a case by case basis [and] . . . for account to be taken, in decisions as to allocation, of all the risks posed by and to the transgender prisoner concerned.” (¶ 65.) In relation to the second ground, the MOJ argued that the policies do not set out the law, but simply provide practical guidance as to the policy adopted by the MOJ. (¶ 69.)
Judgment
The court, before ruling on each of the grounds, made clear that it had been called upon to decide the lawfulness of the policies, not the desirability of them. (¶ 72.) In dealing with the first ground of review, the court stated that it understood the plaintiff’s concerns—namely that it may appear to be “incongruous and inappropriate” that a prisoner of masculine physique and with male genitalia should be held with women and that women prisoners may “suffer fear and acute anxiety.” (¶ 76.) However, the court, also taking into account the rights of transgender prisoners, rejected the first ground because “it is not possible to argue that the [MOJ] should have excluded from women’s prisons all transgender women” (¶ 83) and because the policies are capable of being operated lawfully (¶ 89).
The court also dismissed the second ground because “neither of the policies is, or purports to be, a statement of the law. They are guides to the implementation and operation of policies, not statements of the law relating to transgender prisoners.” (¶ 93.) The court stated that the policies could “no doubt be better expressed”; however, that did not, in the court’s view, lead to their being unlawful. (¶ 95.)
Prepared by Chris Brain, Law Library intern, under the supervision of Clare Feikert-Ahalt, Senior Foreign Law Specialist