Britain is right to put transgender prisoners in women’s jails, a court ruled on Friday in a defeat for a former inmate who alleges she was sexually assaulted behind bars by a trans woman previously convicted of sexual crimes.
British anti-discrimination law requires the rights of trans women and other women to be balanced, two High Court judges said in a judgment that comes amid debate in Britain and elsewhere over whether trans rights conflict with those of women.
Friday’s decision by the London-based court is the third ruling in England and Scotland this year to affirm that trans women should be treated as women apart from in exceptional circumstances.
“It is not possible to argue that the Defendant (Britain’s justice ministry) should have excluded from women’s prisons all transgender women,” judge Timothy Holroyde wrote in the ruling.
“To do so would be to ignore, impermissibly, the rights of transgender women to live in their chosen gender.”
The judges said the government’s policy of assessing the risk trans women inmates posed in women’s prisons on a case-by-case basis balanced the rights of all, while acknowledging their presence could cause “fear and acute anxiety” to other women.
“There is no reliable statistical case that transgender women prisoners pose a disproportionate risk of harm to non-transgender women prisoners,” the judges added.
The woman who brought the case, who was granted anonymity, said she was disappointed with the judgement as it did not consider trans women prisoners’ previous convictions for sexual offences.
“I did not seek to… exclude all trans women from women’s prisons,” the claimant, who alleges she was sexually assaulted in 2017, said in a statement emailed by her lawyers.
“However, I feel that trans women who have a history of violence and sexual offending against women should not be in a situation where they can put our safety at risk.”
The Ministry of Justice welcomed the judgment, a spokesman said by email, without giving further detail.
While data on trans inmates is patchy due to protections for those who change legal status, there were 163 trans prisoners in English and Welsh prisons in March-April 2019, 34 of whom were in women’s prisons, according to figures quoted in the ruling.
Of these, 11 identified as female, 20 as male and three did not provide a response, a government spokesman said.
Between 2016 and 2019, there were 97 sexual assaults in women’s prisons, with seven committed by trans prisoners, the official data shows.
Reporting by Rachel Savage
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