A Woman's Place is not in Prison

Transcript of presentation on 27/10/21

A Woman’s Place Is Not In Prison:

(©2021 Jo Phoenix)

Thank you to WPUK and CCJS for putting this panel discussion on. Let’s hope this evening will kick start a campaign to stop the routine use of imprisonment for women in conflict with the law and short of that to force the Ministry of Justice to apply the lawful single sex exemptions to prison placement policy and stop placing transgender men in the female prison estate.

To paraphrase one of the founding members of Women In Prison (Prof Pat Carlen): In societies structured by profound material, cultural and sex based inequalities, justice is an ideal that cannot be realised in practice.

I know this first hand. As a young woman I was raped by two men and I endured two rape trials in the 1970s in Texas and I have spent more than two decades researching prostitution, child sexual exploitation and youth justice. Just as then in Texas, in 21st century UK, women have unequal access to the law and unequal protection by the law. To borrow from Angela Y Davies: ‘justice’ is a constant struggle.

Here we are, in 2021, and we face a herculean fight to achieve justice for women.

We have already heard from the panel about the plight of many women in conflict with the law and had a glimpse at life is like when being accommodated in the same prisons as men who are also transgender. Some of the language used by the women in prison may have been florid, but these women were simply stating their points of view. Before discussing trans prisoner placement policy, first, let me establish two primary claims.

1.       Prisons are, in general, a colossal failure in relation to dealing with crime. There is no relationship between rates of incarceration and crime rates (garland XX). Contrary to popular myth, our prisons contain many people who do not pose any substantial risk to the public, even if the manner in which they conduct their lives does bring them into conflict with the law. This is particularly the case for women in prison. Most are there for petty property and drugs offences and are on short sentences.

Everything that I say tonight must be heard in relation to my primary claim that prison is no place for most people in conflict with the law.

2.       Prisons are unique places. As obvious as it sounds, they are places designed around 1 simple process – to deprive people of their liberty. Being so, those who are in there have no control over who they associate with. They cannot leave a room because someone in that rooms makes them feel uncomfortable. They do not choose who they have showers with.

I know that sounds simple. Women are expert at navigating the world around us to avoid male violence. In the ordinary conduct of our lives, most of us can take measures to protect ourselves from that which we see as threatening and we can choose to take various measure to minimise the risk we may face from violence. Women in prison are not afforded those possibilities.

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Currently the MoJ places transgender males, with a GRC (regardless of any surgical intervention) in the female estate. In the recent judicial review, the MoJ claimed that they do not keep records of these individuals because to do so would be in contravention of the Equality Act 2010. As someone who gave evidence, I can confirm that the Ministry of Justice has so far singularly failed to keep any decent records of transgender people (male and female) who do and who do not possess a Gender Recognition Certificate and could not answer basic statistical questions.

As Fair Play for Women and Keep Prisons Single Sex have been able to find out through Freedom of Information Requests, the Ministry of Justice stated that the numbers of males who possess a GRC in the female estate were in 'in single figures'. This means that there could be up to 20 such males in female estate overall. Recently, the MoJ have stated that from Nov 2021 numbers of GRC holders will be reported in the annual data returns.

We do however know that the 2019 data collection point showed there were 129 transgender males with no GRC in male estate. 57% of these had at least 1 conviction for sexual offences – the comparison for the total prison population is 18%. So, at least where prisons are concerned, there is evidence to suggest that male prisoners who are also transgender do pose an increased risk of sexual violence.  Currently, there are 11 males with no GRC in female estate. The MoJ declined to give breakdown by conviction due to data protection considerations.

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The Judicial Review did, however, provide an insight into how our trans policy came to be.

We know it was not based on research or evidence – particularly if the MoJ fails to collect any baseline data! I knew it was not evidence based anyway because there have been no rigourous, systematic research projects that have analysed the policy from the point of view of the prisons, the prison staff, the women in prison or the governors. None. An FOI request confirmed that in the last couple of years, there have been *no* research proposals put before the MoJ that seeks to understand the issue of trans prisoners and their placement. There were however several proposals that sought to understand trans and LGBQTi experiences in prison.  

This means there is no officially approved research that poses simple questions like: do the panel who decides to transfer transgender prisons take into account women prisoners thoughts or feelings? How do prison officers manage the complexities of transgender men in female estates? What are the complications for prison governors? How are prison officers trained in dealing with the challenges that the trans prison population might face? How are prison officers trained when responding to complaints of sexual violence made by a female prisoner from a transgender man? How are such attacks recorded and what is the gap between recorded assaults and actual assaults?

We know nothing because there has been no research.

Given everything that the Nolan Report showed about the undue influence of Stonewall in our public sector services, this might be the time to ask to what extent has our prison placement policy been shaped by Stonewall’s highly controversial model of trans rights?

There is another body of research that would have told us this anyway and it is interesting to reflect on why this research was not used to help formulate policy. The evidence base is about 50 years old, so reasonably sound, I would say.

Women in conflict with the law tend to come from backgrounds that have already been shattered by the aggregate effects of male violence, childhood abuse, local authority care, poverty, class and race exclusions (REF).

Women in prison are often sentenced not for the crimes they commit but according to the courts assessments of them as mothers, wives, sisters, daughters and they are sent there often because sentencers think the prison can do something for the women to help them be better women (REF)

More than 50% of women in prison have already experienced 1 or more forms of male violence

As of today, our CJS completely fails women as victims – femicide shows no signs of reducing; policing responses to domestic violence are in a mess; sexual violence is virtually decriminalised with an attrition rate of 98.8% and for those cases that do progress, it can be years before rape is brought to court; in more ‘complex cases’, like women and girls who are being sexually exploited there may never be justice and indeed it may be they who end up criminalised and in prison;

There is a paradoxical effect of placing women in prison - they get some measure of respite from the male violence that often punctuates their lives.

I would say that this is a solid evidentiary base on which to argue that men who are transgender should not be in a woman’s prison, especially given that the statistics indicate that the transgender men (without a GRC) currently accommodated in the male prison estate have a disproportionately high rate of sexual offending. I think this evidentiary based allows us to demand of the government that they apply the single sex exemptions of the Equality Act 2010 to prison placement policy.

Surely, if the state chooses to remove the liberty of a woman as punishment for the crimes she commits, the minimum standard we can expect our government to provide is that those women are not placed at increased risk of trauma from the presence of male bodies, sexual assault, attack, and rape.

This doesn’t seem a lot to ask given the population we are dealing with.

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It seems hardly credible that everything I said above is likely to be seen by many as transphobic and justification for harassment.

We are truly engaged in a herculean fight because one part is just to be able to research, write and talk about these issues. Sally Hines (Professor of Sociology and Gender Identities at Sheffield University) wrote this:

The unwillingness of gender critical feminists to explore the fluidity of the categories of sex and gender … fixes gender to a simplistic model of biological sex that refuses to recognise trans women as women. This view then enables them to position trans women as potential male sexual predators. The absence of any evidence to justify such fears, has done little to halt a prevailing moral panic around the access of trans women to ‘single sex spaces’ such as toilets, prisons and domestic violence services. (Beyond Gender Wars and Institutional Panics: Recognising Gender Diversity in UK Higher Education – Sociological Studies Research (socstudiesresearch.com))

I say this to people like Sally Hines. You are wrong. In the real world, the empirical evidence about male violence is robust, clear and compelling. Single sex exemptions exists because we know the truth about male violence. It is not transphobic to say that men – regardless of whether they are also transgender - need to be excluded from some space to ensure the safety and security of women. To want single sex spaces is merely prioritising women’s needs and rights – something critical in the context of women’s prisons.

But, even suggesting this is likely to get one into hot water. This too I know first hand. In April 2019 my life changed forever after I spoke at A Woman’s Place UK panel discussion where I challenged the idea that transwomen ARE literal women and suggested that trans and sex based rights were in tension. (hyperlink)

Just how profound a change is still playing out.

In Dec 2019, staff at Uni of Essex used that talk as proof of ‘transphobia’ as an excuse to get me cancelled and blacklisted. They succeeded. Thanks to the Reindorf Review we now know this was unlawful. We also know about the violent poster (never investigated), the departmental vote about my presumed politics, the apology, the letter writing campaigns denouncing Reindorf and the apology for the apology.

My treatment by University of Essex was shocking. I still fail to understand why a criminologist asking questions about the government’s prison policy warranted those unlawful actions. But Essex pales into insignificance in comparison with what’s been happening in my own university since 2019.

I have been likened to the racist uncle at the xmas dinner table. I have been told that my opinions on academic freedom and trans create a toxic environment. I’ve been told there is no freedom of speech that is free from consequence. But, I feel very strongly that as academics we must ask questions and that male prisoners should not be accommodated alongside female prisoners.

I feel so strongly that despite the harassment I had already received at the OU (and following the Forstater ruling) I (and others) launched the Open University Gender Critical Research Network (@OU_GCN).

The result was a targeted public harassment campaign. 

Colleagues organised several open letters and statements defaming the network, saying that its members were all transphobic and calling for the university to ‘disaffiliate’ us. One ended with more than 360 staff signatures. Two others were placed on University servers. Colleagues tweeted and retweeted message calling me and the network TERFs.

This was not ‘protest’ or debate – this was harassment (as anyone who knows the legal definition will also know) aimed at creating a hostile environment and asking my employer to discriminate against me and other network members.

Within a few days, everywhere across the university there were calls from STAFF (not students) for the university to distance themselves from us and our work. Our local UCU branch shared an email that contained links to the harassing letters.

To date University has done nothing despite my pleading and despite them knowing it has given me PTSD.

You can read more about it on my crowdjustice funder.

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How to end?

My harassers brought me to my knees this summer but like my namesake, I rise, and even though I know they will come for me again (and again and again) I will not be silent or silenced.

If there is any hill I am going to die on, it is this one. We are amid an epidemic of male violence that is proceeding unchecked. Our universities are in crisis about appropriate academic debate and harassment. In the UK of 2021, women’s access to justice is, for the most part, an illusion. When we say this, our detractors pass it off as us whipping up a moral panic and of being part of some ‘anti-trans lobby’. 

I will say it again, in our prisons today, there is a conflict of rights – in prisons it IS a zero sum: giving concession to transgender male prisoners leaves vulnerable women exposed to further trauma as well as increased levels of risk.

We need our gov’t to apply single sex exemptions in prisons.

We need to prioritise justice for women.