The Transsexual Prisoner
11 Sep 2009 Leave a Comment
in transgender Tags: human rights transsexual, transsexual prisoner
Headline writers have been gorging themselves in a gluttony of sensational, cliché ridden tag lines in respect of the transsexual prisoner who, as the result of a legal ruling, is being transferred from a male to a female prison. The historic ruling in the Royal Courts of Justice overturned an earlier decision by Jack Straw. This coupled with the nature of the crimes and the circumstances surrounding the case have caused a huge amount of media interest.
I don’t have details of the transcripts but am basing my comments on the official newsfeeds that came out on 5th September.
Background
The case concerns a male to female transsexual prisoner, referred to in court as “A”, who was convicted of manslaughter and jailed for five years after smothering her boyfriend with a pillow and strangling him with a pair of tights.
“A” says that although at first accepting of her gender Dysphoria, her boyfriend moved to hostility when she became increasingly feminised and she lost control after a row.
Less than a week after she was released on licence some two years later, “A” attacked a shop assistant, forcing her into a back room, tied her up with a suspender belt and tried to rape her.
Many questions arise. What is the legal status of “A”? What are her rights in prison? How and what defines her as female? Where does a transsexual prisoner go, to when committed to a custodial sentence?
“A” is apparently in position of a gender recognition certificate in accordance with the Gender Recognition Act of 2004 (GRA).
The ruling
The judge ruled that “A” presents convincingly as a woman.
Does this mean he was swayed by physical appearance? Would he have ruled differently if the individual had looked less convincingly? Is a butch woman any less a woman than a catwalk model? It seems to me to be a dangerous assumption to make as a trans woman (male to female transsexual) may depending on age look more masculine than a younger trans woman.
If we go down the appearance route will people be expected to attend a Jerry Springer type parade to determine suitability?
The judge said, “While the outcome of these proceedings does not turn on this issue, the restrictions placed on the claimant exceed those which would apply if she were resident in the female prison estate”.
In short the judge is ruling that “A” would suffer fewer restrictions in the female prison.
The judge said: “It follows that, so long as the claimant remains within the male prison estate, she is unable to progress towards the surgery which is her objective. This presumably refers to a requirement laid out in Standards of Care (SOC) protocols and guidelines which, based on the original Harry Benjamin guidelines which are regularly updated and used by clinicians when treating people with ‘Gender Dysphoria’ These guidelines require that patients live ‘in role’ for a period of two years before any referral for Sex Re-assignment can be made. The judge went on to say,
“Because he was in a male prison, he could not even begin progressing to gender reassignment surgery.”
“A”,s legal team had argued that “The crime, for which “A” was given an automatic life sentence, was also closely linked to her obsession with becoming a woman and her intense frustration at the authorities’ refusal to help her qualify for full gender reassignment surgery”
Questions
Many questions arise. I’d like to address just a few of them here.
The judge ruled that “A” had a legal right to be recognised as a woman. What did he base this assumption upon?
The biggest question on most people’s lips is likely to be ‘How can someone who claims to feel like a woman trapped in a man’s body attempt to rape a woman by using that male body?
Was “A, s” crime a result of frustration and anger as implied by her defence team?
What defines male and female?
Some Answers
What makes this case particularly difficult is the nature of the crimes especially particularly in respect of a heinous crime against a woman?
In order to answer the legal argument, I am going to set this question aside and come back to it when I talk about treatment.
It might be useful, if to examine the logic of the legal argument, particularly its relationship to the GRA. I’ll then comment on treatment pathways as it relates to this case.
Legal status for transgendered people has always and continues to be a contentious issue. Ever since Lord Justice Ormerod In the 1970 case of April Ashley (Corbett v Corbett) ruled that her marriage was void because despite having female genitalia, April had sex reassignment surgery previously (SRS), she had male chromosomes and could not therefore ever legally be female.
Even though this ruling was effectively challenged by the GRA in 2004 which first allowed transsexual people who could fulfil certain criteria to obtain a Gender Recognition Certificate (GRC) and then a new birth certificate showing that their acquired gender was at that point the legal gender for all intents and purposes.
This act is a deeply flawed act not least because one of the conditions is that a transsexual person, who may have been married for many years prior to the act, cannot apply for Gender recognition certificate (GRC) unless the marriage is dissolved.
This is a punitive requirement since many transsexual people remained with their spouses in marriages because they loved and still love each other. Where children are present they would be penalised in an already difficult situation by having divorced parents when it was totally unnecessary. Furthermore, it flies in the face of many people’s religion, faith, belief and conviction.
The act was never intended as a defining piece of legislation to determine whether a transsexual was only protected in law if they possessed a GRC. Sadly many ill informed employers and statutory bodies deem it so; thus they unwittingly discriminate against trans people who do not possess a GRC.
The reality is that trans people should be protected against discrimination by the Sex Discrimination Act (Gender re-assignment regulations) 1999 and other acts.
In short the GRA opened up the possibility for some trans people to attain full legal status as men and women and marry in their acquired gender. It was not intended and should not be applied as a defining document to confirm manhood and womanhood.
So what of the other components of the GRA as relevant to this case?
One of the other conditions is that someone should have lived in their new gender role for a period of two years. They do not have to have actually had SRS prior to obtaining a GRC. Prisoner “A” has obtained a GRC so should, if the requirements of the GRA been adhered to, have already lived in role as a woman for two years. However, the judge ruled that she needed to go to e female prison in order to fulfil the requirement by clinicians before Sex reassignment surgery can take place.
Clearly something doesn’t fit. If prisoner “A” has a GRC when and how did she obtain it? If she had met the two year requirement she should anyway be in a position to obtain surgery. There is clearly a contradiction here.
Furthermore, if she has a GRC she is, as stated earlier, a woman in all legal respects. So why isn’t she in a female prison anyway?
The answer is that the prison authorities are placed in an impossible position by the GRA and it is also why Prison guidelines are still being wrestled with. Someone with a GRC has a legal right to be in a prison according to that gender role as defined by their certificate.
Clearly this person has an absolute LEGAL right to be in a female prison. But what of a transsexual prisoner who does not have a GRC?
The prison authorities have to deal with the ambiguities of legislation whilst also having to remember a duty of care for their prisoners. Whether “A” is in a male or female prison she will clearly have to be protected from the prison population that may be hostile not least in a woman’s prison because of the crimes.
Plainly, the GRC cannot be the only measure. A transsexual person may have had surgery many years before or be moving towards surgery. Should they have fewer rights than prisoner “A”? Common sense would dictate that they should not. If common sense is not enough Article 8 of the Human Rights convention which effectively allows for freedom of expression and appearance should surely be a protection.
So how do all these legal matters marry together with treatment?
When a person presents for treatment they are supposed to be subjected to rigorous psychological evaluation and support prior to a referral for medical treatment.
I have no knowledge of what actually happened here but clearly a GRC was issued which means that clinicians overseeing the case must have already supplied evidence to the effect that this person has fulfilled all the necessary criteria. Presumably this was obtained prior to the custodial sentence? If it wasn’t how was it obtained in prison if the criteria including the two year rule which requires living in role had not been adhered to?
How are the clinicians supporting this case? Clearly we don’t know but surely they have ensured that this person was dealing with any neurosis and behavioural problems before medical treatment and surgery.
The defence Counsel argued that her frustration and anger emerged from the earlier denial of treatment and was a factor in her crimes. I should imagine any trans person or anyone for that matter, reading that would be disturbed by the notion that you could have any justification or in any circumstances find a sane reason for attacking a woman. More especially if you felt that you were a woman!!
Surely any rational being would agree that this is too much of a stretch. If you were frustrated and angry you might conceivably, although without justification, be jealous and angry. To attack someone clearly means that are mental health issues that need to be resolved and clarified here.
What clinicians overseeing trans patients insist upon is that the individual complete a Real Life Experience (RLE) of two years before a referral for surgery can be made. In plain English it means living and functioning fully in the new gender role.
This appears to be a significant factor in the decision to send “A” to a female prison. However, as I said earlier there appears to be conflicting information about what has occurred in respect of having lived for two years to obtain a GRC on the one hand and the requirement to have lived in role for two years prior to a referral for surgery.
Summary
If we detach ourselves from this particular case, we can see that a prisoner has a legal right to be housed in a prison appropriate to their legal status and if they are in possession of a GRC because the law says they are male or female according to that certificate. However, in the case of “A” they have not been approved for medical treatment hence we have the judgement which states that “A” was effectively being denied treatment.
One can only imagine what the public make of all this. Someone can get their birth certificate changed without having had SRS yet you could have had surgery twenty or thirty years earlier and because of your beliefs and desire to stay married be denied a basic human right.
I believe in absolute equality for all transgendered people. That is not just in a legal sense but in a moral one too. This equality extends to treatment and duty of care which goes beyond medical treatment and further extends to good psychological and psychotherapeutic support in order to ensure that appropriate treatment is administered.
This case goes beyond legal and human rights. How can we ignore the fact that this person attempted the rape of a woman? At best there are psychological factors that were at play and at worst there are deep psychological issues that simply have not been addressed prior to this person receiving clinical treatment.
I haven’t been involved with this case but if I were, I would be posing far more questions than appear to have been answered here.
