Today the High Court of Justice has handed down a judgment rejecting claims that the Ministry of Justice’s policy on the care and management of trans prisoners discriminates against women.
The Bent Bars Project welcomes key elements of the decision.
What is the case about?
A woman prisoner, supported by several 'gender critical' groups, brought a case against the Secretary of State for Justice regarding the Ministry of Justice’s policies on the care and management of trans prisoners in England and Wales.
The prisoner (the claimant) argued that her human rights were violated by having to be in the same prison as trans women prisoners who have convictions for sexual or violent offences against women.
The claimant argued that the policies should be declared unlawful.
Why did we intervene?
A member of the Bent Bars Collective, Dr S Lamble, was granted permission to intervene in the case in an individual capacity. We intervened because we were concerned that some of the arguments put forth in the case were reliant on faulty evidence and unsound statistical claims about trans prisoners. We also intervened because we were concerned that these incorrect claims would perpetuate harmful and damaging stereotypes about trans prisoners specifically and trans people more generally.
Dr Lamble was granted permission to intervene in this case in January 2021. Permission to intervene is at the discretion of the Court and is usually granted to those who have particular knowledge or expertise in a relevant area. We were pleased that the court recognised the singular position which Dr Lamble and the Bent Bars Collective occupy to comment on the issues which face trans prisoners and members of the LGBTQ+ prison community.
Dr Lamble was represented by Stuart Withers of No5 Chambers and Killian Moran of Kesar & Co Solicitors.
Why is the case important?
The claimant was arguing for trans women to be treated less favourably than non-trans women in the context of prison policy. If these arguments were successful, this could have had wider implications.
The case was potentially testing the Equality Act exemptions, as to whether it would be lawful to discriminate against trans women in particular cases. The Equality Act prohibits discrimination, but in certain circumstances there are exemptions where it is permitted to discriminate when a measure is deemed to be “a proportionate means of achieving a legitimate aim”.
The claimant argued that the Ministry of Justice should be compelled to exercise the Equality Act exemptions (under Schedule 3) and exclude some trans women from women’s prisons on the basis of group-based categorisations rather than on case-by-case risk assessments.
What was the court decision?
The claimant’s arguments were rejected. The court ruled that the current polices are lawful and do not violate the rights of women prisoners.
The court said the policies “do not involve an unjustified or disproportionate intrusion with the [Human Rights Act] Convention rights of women prisoners.”
The court also clarified that the Equality Act exemptions are discretionary and do not have to be used. As the judge said: “the minister was under no obligation to apply them, either generally or in any particular case.” This is an important ruling as it has wider implications for trans inclusion. For example, it helps to clarify that the exemptions do not create an obligation to exclude trans women from women only-spaces.
The court also recognised our concerns about the misuse of statistics. The judge specifically referred to the claimant’s “misuse of the statistics, which in any event are so low in number, and so lacking in detail, that they are an unsafe basis for general conclusions.”
What is the Bent Bars Project’s view of the case?
We welcome the judges’ rejection of discriminatory arguments and inaccurate claims that were being used to say that trans women should be treated less favourably than non-trans women with respect to prison policy. We see the struggles of all women as linked and reject attempts to divide our communities. This case is a win for all women as it reaffirms principles that some groups of women cannot be discriminated by over others.
The decision re-affirms the spirit of the Equality Act 2010, which aims to prohibit discrimination, rather than allow it.
As Dr Lamble said, “we felt it was important to intervene to ensure that harmful stereotypes were not reinforced through the case.”
“These types of discriminatory claims are nothing new and follow a long history of the demonisation of LGBTQ+ people. Just as our communities resisted that demonisation and stereotyping in the past, we will continue to challenge it whenever and wherever it arises today.”
BentBars Collective member Elio said: “Group-based stereotypes and stigmatisation will not help to reduce violence in our communities. We need to address the underlying causes of violence, which are often related to inequality and discrimination.”
“We see this case as an opportunity to have much needed public conversation about the current conditions and issues that prisoners face, and the pressing need to make greater efforts to prevent and reduce harm both inside and outside prison.”
The Bent Bars Project encourages the public to learn more about these issues and read our Trans Prisoner Info Sheets posted in our resource library.