What Do We Stand For?
Criminology, Politically Induced Ignorance and Gender Identity Politics
This is a much longer piece than is usual for a blog. It makes some important claims about the discipline of criminology and the population of transgender prisoners in England and Wales.
At the time of writing (Dec 2021), the public discussion about the rights of biological males who identify as women to access women-only services has returned to where it started nearly three years ago: how to protect and safeguard women and girls from male violence and how to support the rights of transgender individuals, largely transgender women, to be in an environment that recognises their gender identity. Inevitably, the focal point is prisons, changing rooms and predatory sexual offenders.
This blog is my attempt to cross the academic divide. To explain to the general public why we need criminology to help us address some of these issues and to explain to my fellow academic criminologists why they should be paying attention. For those unfamiliar with some of the intricacies of definitions, please read the following paragraphs. Otherwise skip straight to the main blog.
There is much confusion in the public debate. Many people who support the rights of transgender people to live with dignity, free from discrimination and denigration and identify as they choose, assume that the category ‘transgender’ applies to those individuals who are in the process of transitioning from one state to another. Hence, when thinking about biological males, someone who is transgender is commonly thought to be a male who desires to be a woman and undergoes a process (such as dressing as a member of the opposite sex, taking hormones and having surgical procedures to change their bodies) in order to become a woman. It is also commonly thought that the end point to that process is the possession of a gender recognition certificate which in the UK is the document required to permit an individual to change their legal sex marker on important documents (like passports, driving licenses and so on).
The Equality Act 2010, in the UK, provides important employment protections for these individuals (known within the Act as those who undertake gender reassignment) and requires employers to support the individual in that process. Once someone changes their legal sex marker, they are entitled to access female only services unless there are what are referred to as ‘single sex exemptions’. For, the Equality Act 2010 contains a clause that states that under certain circumstances (and where it is ‘proportionate’ to do so) it is legal to discriminate against those who have undergone gender reassignment and exclude them.
In the last decade or so, there have been significant socio-cultural changes which mean that the identity of ‘transgender’ is a much wider social and political category. We know that those individuals who undergo gender reassignment represent only a small proportion of a much wider population (in 2020/21 less than 500 people applied for a GRC). The concept of ‘transgender’ (also often presented as ‘trans*’) no longer connotes merely or only those undergoing gender reassignment (see for instance Halberstram 2017). The concept refers to anyone who identifies with a gender other than that indicated by their biological sex. Sitting underneath this socio-cultural change is the contested concept of ‘gender identity’. Trans social theory (see for instance Stryker 2017) tends to distinguish between:
gender as in a set of ideas and notions about femininities and masculinities and how we, as individuals perform them; and,
gender identity which is something disconnected from a person’s biological sex and is thought to be an essential part of an individual’s self-concept, which reveals itself to that individual and thus only the individual can know their true, authentic identity.
Hence, the category of transgender woman now includes those individuals who undergo gender reassignment as well as a new group of individuals who state that their identity is that of a woman even though they may have a penis, a beard and other male phenotypical characteristics. It is this broadening of the category transgender that, in my opinion, presents real challenges when thinking about prison placement policy, for in broadening the category all those who ‘self-identify’ as a woman (and not just those who are undergoing gender reassignment) come into consideration for placement in the female prison estate.
For the sake of clarity, I am adopting the following terms: natal male and females refers to people’s biological sex; legal sex refers to their biological sex marker on legal documents which, depending on whether an individual possesses a gender recognition certificate may not be the same as their natal sex; gender identity to refer to how an individual sees themselves; transgender to refer to individuals who have a gender identity at variance with their legal and/or natal sex.
Where are all the criminologists in the sex vs trans debate? They have expertise in prisons and sex offenders. The crucial part of the debate is whether gender identity is a more important social category than biological sex. Yet, several hundred British academic criminologists are nowhere to be found (with a few notable exceptions on both sides of the argument) even though there is a robust generally known criminological knowledge base from which it is possible to make reasonably knowledgeable interventions.
Why is academic criminology absent without leave where gender identity politics is concerned?
Perhaps individual academics are afraid of speaking out, and with good reason. Many universities are now dominated by a workplace culture that demands conformity to Stonewall’s version of transgender rights and a populist politics of ‘inclusion and diversity’. No longer oriented around anti-discrimination, this new workplace culture is supported by the indoctrinated academics repeating Stonewall’s newspeak mantras (transwomen ARE women, our existence is not up for debate) as a means of policing fellow academics’ ideological obedience. The fear is real. For, the arsenal used is to exclude, cancel, bully and harass anyone whose research or politics prioritises sex-based rights as well as anyone who has the temerity to question trans political orthodoxies. Personally, having twice been on the receiving end of the censure of the Stonewall’s ideologues, I don’t blame my colleagues. But just because one is afraid, it doesn’t follow that one should remain silent. After all, courage calls to courage and academic freedom, professionalism and our discipline is at stake.
Perhaps the absence of criminology has more to do with a blindness (willful and otherwise) to what I see as being a fundamental assault on the knowledge base of our discipline (as well as how we go about conducting our business). So, for me, the absence prompts this question: what do British criminologists stand for? Knowledge? Or academic amnesia and politically induced ignorance?
The importance of sex to crime and justice
Every criminologist working in British Universities today knows the importance of sex to crime and justice. It is routinely taught to all undergraduates. The knowledge base is strong and what evidence we have about gender identity does not call it into question.
Sex is the single strongest predictor of criminality and criminalisation. Since criminal statistics were first collected (in the mid 1850’s), males make up around 80% of those arrested, prosecuted and convicted of crime. Violent crime is mostly committed by males. Females in contrast are a law-abiding lot and whilst they do get arrested for violent crimes, the majority commit poverty related offences. There are many different explanations for these differences, but none question that basic truism that crime tends to be a male problem. This remains the case regardless of stated gender identity. Her Majesty’s Prison and Probation Service has collected statistics on transgender offenders in prison and these statistics demonstrate that the same sex ratios are present for transgender prisoners. Transgender women (that is natal males who identify as women but do not possess a gender recognition certificate) make up around 80% of transgender offenders (see Dimyon 2021 and HMPPS 2021). The data is easily available. The analysis simple and quick. The implication, however, is fundamental. Gender identity does not override biological sex in shaping offending histories. In fact, the opposite is true.
Since the arrival of feminist criminology and victimology in the 1970s, every academic criminologist also knows that sex shapes an individual’s chances of being the victim of abuse and violence. Women are routinely under protected for the crimes committed against them – and that is only when we recognise women and girls experiences of abuse and violence as crime. Remember, in England and Wales, it was not until the 1970s that domestic violence was recognised in law and it was not until 1992 that rape within marriage was made illegal. Even when the crimes against women and girls do come to the attention of the police, we know that the attrition rates for such crimes are particularly high. Indeed, the detection, prosecution and conviction rate for rape is currently so low that rape has been virtually decriminalised in English society today (only 1.6% of reported rapes end with a prosecution). We know that male violence blights the lives of millions of women. Prevalence studies estimate that around 1 in 3 women in England and Wales between the ages of 16 to 74 will have experienced some type of domestic abuse (including sexual violence from family members or partners). We also know that since Covid, more and more women are experiencing domestic violence. Of course, many proponents of gender identity politics would claim three things when presented with these statistics: this is not related to sex but to discourses of gender that mean that males act in particular ways; transgender women are victimized too; and women are violent too. Some of this is true. But, if gender identity shaped patterns of criminality (and thus would impact on patterns of female victimization) we would see comparable levels of violence committed by transgender men. We do not. Of course transgender women are victimized but there is no research that indicates that the victimization they experience is sociologically similar to that experienced by women. In fact, what few studies exist indicate that the victimization experienced is in relation to their status as transgender and not their gender identity as women. And finally, of course women are also violent, but the overwhelming majority of violence is not committed by them. There are few academic criminologists working in British Universities today that would dispute this final point.
There is more. Everything about criminal justice administration is saturated by normative expectations and sexist stereotypes of how particular sexed bodies ought to behave. It has been more than 50 years since the phrase ‘doubly deviant, doubly damned’ entered the criminological lexicon. When offending women appear in courts, what happens to them and how they are sentenced often has more to do with the courts assessment of them as women rather than as offenders. When female victims appear in court, the same holds true with rape victims often describing the court process as a second victimisation. Against this knowledge base, queer criminological research has indicated whilst transgender women and men experience particular types of wrongs in the criminal justice system it is on the basis of being transgender not on the basis of what their gender identity is (see especially Buist and Stone 2014).
Knowledge versus Ignorance
These basic criminological tenets about the importance of sex are not matters of opinion. It is a knowledge base formed over nearly two centuries of collection, collation and analysis of criminal statistics and through the rigour of peer reviewed published research. Criminologists already possess a great deal of knowledge from which we can surmise that gender identity does not take precedence over sex and that calls to act as though it does require ignoring a massive edifice of criminological knowledge about women’s experiences and male violence. Yet few of my contemporary criminological colleagues seem to have grasped that. The claim that gender identity is more important than sex is not an academic claim. It is a political claim and the unquestioning acceptance of it requires that we put aside a great deal of what we already know and embrace ignorance in the service of politics. Let me expand.
In order to swallow this political claim, we must first relegate our knowledge about sex to the rubbish bin of ‘bad think’. We must become ignorant. Specifically, we must forget that prisons are sex segregated as a means of protecting women from convicted male sex offenders. We must forget that there is a risk assessment procedure that the Prison Service conducts when assessing whether a transgender woman (that is a natal male who identifies as a woman or as transgender but does not possess a GRC) should be placed in the female prison estate. That process exists because of the implicit recognition that some men will feign transgender status as a means to get into a woman’s prison and some transgender women do present a risk in the female prison estate. So to swallow the claim that gender identity is more important than sex, we must forget about Karen White. We must forget about the legal woman (a natal male who possessed a gender recognition certificate, a penis and a history of sex offending against women) who assaulted FDJ in a female prison (see Secretary of State versus FDJ judicial review). We must instead accept what we are told by the indoctrinated foot soldiers of Stonewall’s ideology: that these are exceptions, and any discussion of other potential Karen White’s is transphobic because it invokes a stereotype of transgender women as being sexual predators. Yet, anecdotal evidence from people working within the prison service as well as academic criminologists with histories of working with sexual offenders (see specifically the twitter interventions of @James_Treadwell) indicates that our concerns are real.
Let’s get even more specific. There are relatively few incarcerated women in England and Wales in comparison to incarcerated men. In 2021, there were 3196 people in the female prison estate in England and Wales compared with 75,128 in the male estate. And whilst there are no offence categories that are *exclusively* male or female, rape and other sex offences are profoundly sexed. 99% of sex offenders are male. Biology truly matters where sex offending is concerned, especially given that 88% of victims are female. This is widely known within criminology and I struggle to understand why my criminological contemporaries are not standing up in defence of women to point out that where prisons and sex offenders are concerned biology really does matter.
However, my colleagues may be unaware of an important emerging stable pattern: that the population of transgender prisoners who do not possess a gender recognition certificate contains a hugely disproportionate number of sexual offenders relative to both the general male and the general female prison population. As a result of Freedom of Information requests, later confirmed in the Secretary of State versus FDJ judicial review, the MoJ disclosed that 60 of the 125 transgender inmates in 2017 had committed one or more sexual offences against women or children. This means that nearly half of transgender prisoners had histories of sexual violence as compared to only 1.8% of the general female prison population and 18% of the general male prison population. So overwhelming were the statistics that in 2021, the judges hearing the FDJ vs Secretary of State judicial review confirmed that the placement of transgender women (that is natal males who identify as women but do not possess a GRC) in the female prison estate would lead to an increased risk to females there located. The judges accepted the evidence that the offending patterns of transgender women are at variance with their gender identity but in concert with their natal sex.
What the statistics of 2017 demonstrated is confirmed by the statistics for 2021. A freedom of information request to the Ministry of Justice shows that in 2021, the number of transgender prisoners in England and Wales had increased from 125 to 197. Of these, 97 were sentenced for 177 sexual offences including 48 convictions for the biologically specific offences of rape and attempted rape. This provides us with stable, relatively clear evidence that there indeed is a higher prevalence of sexually violent prisoners in the transgender prison population, in comparison to the male prison population and the female prison population. Somewhere around 50% of the transgender prison population are convicted sex offenders and that pattern has held in 2017, 2018, 2020 and now 2021. It is most likely that these are natal males rather than natal females. We can surmise this because there is no evidence base within the criminological literature, the evidence presented to the judicial review or the evidence collected as part of the consultation for the Gender Recognition Act in 2018 that raises questions - anecdotal or otherwise - about the harms posed by transgender men (that is natal female who identify as men) to female prisoners.
In the end, if prison placement policy was based on self-identification alone, and based on today’s prison population a minimum of 58 natal men convicted of rape or attempted rape could be placed in the female prison estate. Criminologists should be shouting this from the rooftops, not ignoring the potential harms such a policy might pose to women or giving way to an ideology that prioritises the rights of transgender natal males to a social environment that affirms their gender identity regardless of their offending histories.
Criminologists are also strangely silent on the suggestion that police and courts stop recording sex and record gender identity instead. They ought to be in the public domain talking about how without recording the sex marker, our criminological knowledge base will be unable to speak about male violence against women, inevitably and eventually.
Earlier I said that academic criminology was absent without leave from these public discussions and I suggested that the absence is perhaps because individual academics have not yet understood what is at stake. In the preceding paragraphs, I have tried to reframe the ‘problem’ in a way that might reveal what I see is at stake: our knowledge base and the recognition of the potential harms to women. The claim that an individual’s gender identity is more important than biological sex as a social category is, for me, one of the boldest forms of denying male violence and female victimsation that I have heard. For, to accept that statement requires that we accept that matters of professionalism in research, methods of social scientific inquiry, rules of reason and recognition of social reality take second place to politics and ideology. So, I ask my academic criminological community: what do we stand for? Why is criminology so absent in the public discussion? Why is this discussion so absent within criminology?
To date, only a handful of British criminologists have entered the public discussion to challenge the notion that gender identity is more important than sex, and I am exceedingly grateful to all of them. Since I started talking about my experiences of being bullied, harassed and discriminated against at The Open University for questioning Stonewall and for suggesting that gender identity is not more important than academic freedom or sex, many of my colleagues from across the world have written to me with private messages of support, have contributed to my crowd justice fund (https://www.bitly.com/ProfPhoenix) and talked about the various ways that they are resisting the encroachment of unreason into our discipline. Each of those messages has offered me hope. Though I do not judge individuals for the choices they must each make, I have been wondering, given that the entire discipline of criminology is sex-saturated from start to finish, why are academic criminologists silent? I hope that in asking what we stand for, I will encourage more of my community to enter the public discussion, even if it is to argue why I might be wrong.