Workers’ Liberty supports trans and gender-diverse (TGD) people’s rights. Some left feminists (sex based rights activists, SBRAs) see those as threatening women’s rights. This series of articles attempts to thread a path for left-wing activists to reach more agreement. This article examines prisons. I use “assigned sex at birth” for biological sex, and “gender identity” for psychological and social identification. I am a university and gender-affirming health clinic researcher. I identify as a gender-non-conforming man (he/they). Nothing I write here represents my employers’ stance.
Violence in prisons is a large problem, including sexual assault. Trans people are sometime perpetrators, but much more often are victims.
All women in prisons face a high likelihood of physical and sexual violence from staff or other residents. In England, violence in women’s prisons runs as high as in male prisons, though many fewer women are jailed for violent crimes. A major international (but mostly US) meta analysis estimates that 25% of women in prisons have been physically assaulted, and 15% sexually assaulted. (Caravaca-Sánchez et al 2023). There is strong evidence that the majority of sexual assaults in prison are by staff (Polaschek, 2023).
Studies of trans women’s experience in men’s prisons show significantly higher rates of physical and sexual assault. For example, a Californian men’s prisons study of 315 transgender women (Jenness et al 2019) found that 80.3% experienced physical victimisation and 58.5% had to undertake sexual activities against their will. This and other studies point to how trans women in men’s prisons enter “consensual” sexual relationships, which reduce the sexual assaults they suffer, but still experience sexual victimisation in those relationships.
Yet trans women being in women’s prisons has become a highly contested issue over the last decade, often highlighted by SBRAs who often argue that no trans women should be housed in women’s prisons. In Melbourne Australia SBRAs and the right wing Liberal party are
currently calling calling for “Hilary Maloney” to be transferred to a men’s prison to serve their term for abusing her five-year-old daughter and sending videos to an overseas paedophile. This case highlights problems with the argument made by the SBRAs who demonstrated at the Dame Phyllis Frost prison with slogans of “no men in women’s prisons”.
“Maloney” has been in solitary confinement in a maximum security prison, as one of seven trans women out of 538 residents. They would certainly face grave dangers if they were transferred to a men’s prison. A forensic psychiatrist found that “Maloney” “was highly unlikely to commit further sexual offences”. There is no evidence they represent a threat to other (adult women) residents.
Trans women prisoners are often isolated, supposedly for their safety. But a recent study of 280 trans people in prisons across 31 US states found 90% had been in solitary confinement, 31% were harassed, threatened or attacked by other incarcerated people, and 53% experienced non-consensual sexual encounters (Chesnut et al 2024). It is clear that solitary confinement has major psychological health impacts.
There are, of course, a few documented, but widely cited, instances of sexual assault in women’s prisons by trans women (around ten globally). Two key cases changed the dynamic of discussion in the UK and Scotland, Karen White was found guilty of rape in 2018 and Isla Bryson in 2023. Much comment was as if the problem were not their history of sexual assault, but their gender transitions. Whilst on remand awaiting trial (initially for assault on a man), White was placed in a women’s prison, sexually assaulted two other residents (through sexually-related touching) and was relocated to a men’s prison. Bryson was in a women’s prison whilst on remand for rape charges, but isolated from other residents. After conviction they were moved to a men’s prison.
Danger
These cases certainly point to the danger posed in women’s prisons by perpetrators of sexual assault. But trans women represent a very small part of the problem of sexual violence in prisons: the vast majority is perpetrated by prison guards and cis women prisoners. (Fewer than 3/1,000 prisoners in England and Wales are trans people).
Lambie (2023) argues that in debates around White: “women’s prisons were routinely constructed as otherwise ‘safe spaces’ until the entrance of trans women …. obscuring the acute and ongoing institutional dangers and harms that all prisoners face. In fact, a few months after Karen White was sentenced … a male prison officer, Iain Cocks, who was working in the same women’s prison that White had been initially housed in, was convicted of sexual offences against two women prisoners. Yet the Cocks case attracted far less media attention and controversy.”
The focus on trans women as a danger diverts attention from the realities. Firstly there need to be effective measures to stop assaults by prison guards. However, official attempts to do that, such as the US Prison Rape Elimination Act of 2003, have been markedly ineffective due to lack of compliance by prison authorities. (Daly et al 2023 “Women’s Dignity, Women’s Prisons: Combatting Sexual Abuse”.)
Secondly, there needs to be recognition that trans women face enormous danger when placed in men’s prisons. Even when male prison authorities recognise these issues, a common response is to place trans women in solitary confinement, or in “special wards” that also include rapists etc. where they are at great risk of assault.
So what are the possible ways forward between the competing arguments set out below?
1. Some right wingers argue that trans people be assigned based on their birth sex, regardless of gender affirming treatments.
2. Others (including many SBRAs) argue that only trans women who have had gender affirming surgery (and some include trans men), and have no history of assaulting women should be allowed into women’s prisons.
3. Many trans advocates argue that all trans people should be held where they select.
4. A few countries have opened transgender facilities, or wings in some women’s prisons. That is perhaps better than putting trans women in male prisons where they are almost certain to be harassed, or trans men in female prisons where they may elicit fear and hostility. Trans prisoners’ views are mixed — some trans women prefer to be in male prisons, and many oppose “segregated” wings for trans people.
Some recommendations? The first demand should be one not specific to trans people: vastly fewer people, and very few people whose conviction is not for violence, should be in prison. In England, 70-odd% of women prisoners are there for non-violent offences. England jails about three times as many people, in proportion to population, as the Netherlands.
Further: one clear principle in women’s prisons should be that any resident (cis or trans) with a history of sexual assault evidently needs to be housed separately from potential victims — other residents. A second clear principle is that all inmates should have some choice over whom they share a cell with, or whether they are in a single person cell.
Such texts as the Winter 2023 “Correctional policies for the management of trans people in Australian prisons” give guidelines, summarised below.
Placement: Decisions “consider the individual’s housing preference, gender identity and expression, and safety considerations rather than solely their anatomy or sex assignment at birth”. Allow for incarcerated trans people to have access to private shower and toilet facilities.
Classification: That all staff address incarcerated trans people by their correct names and pronouns.
Solitary: That policies “ensure the safety of [trans people] without segregating or isolating these individuals.”
Healthcare: needs to be delivered without undue delay, for gender affirming hormones and surgical treatments, general health care, and particular issues around mental health, wellbeing, and violence, and Sexual Health and Infectious Disease
Belongings: That incarcerated trans people have access to clothing and grooming options “concordant with their gender expression.”
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