What are we doing about trans women dying in our prisons?  

Tam Blaxter

cw// suicide, transmisogyny, misgendering,
imprisonment, medicalisation of trans identities

In early November of 2015, Vicky Thompson committed suicide in Armley, a category B men’s prison in Leeds. She had talked to her boyfriend about being bullied. In her trial, her solicitor had asked the judge to place her in a women’s prison, and she had told friends that she would kill herself if committed to a men’s prison.

On the 27th November 2015, Joanne Latham hung herself in her cell in Woodhill prison in Milton Keynes. She was in a men’s prison. She had been identified as at risk of suicide the day before.

On 30th December 2016, Jenny Swift hung herself in her cell at HMP Doncaster. She had been in prison for five weeks. During that time she had been denied access to her medication and had spoken to a friend of the deep distress that that was causing her. She was in a men’s prison. She was habitually misgendered by guards and had spoken of taunts from other inmates, and was waiting while the prison service considered moving her to a women’s prison.

Of course, all of these women were trans women. There was an outcry following the death of Vicky Thompson, and public pressure was put on then-Justice Secretary Michael Gove to act. The DoJ responded by pointing to an ongoing review of the treatment of trans prisoners and committed to collecting figures on the number of trans people in the justice system. This resulted in published statistics and a new policy document in November 2016. The new policy came into effect on 1st January 2017, two days after Jenny Swift’s death.

Is this a tragedy of timing, then? Should we lament those for whom the change did not come in time, but move on mollified that the problem has been addressed?

I would argue not.

Would this new policy have changed practice in Jenny Swift’s case? The document states that if someone is receiving medical treatment for gender dysphoria before entering prison, “it should be continued until the prisoner’s gender specialist has been consulted on the appropriate way to manage the prisoner’s treatment”. This seems to be encouraging: Jenny Swift had been undergoing HRT for years before entering the prison, and so under the new policy would be allowed to continue taking this by default. But this was already the policy: the previous document, from 2011, also states that a prisoner’s existing medical regimen should be continued automatically while waiting for specialist medical advice. In either case, her access to her medication relied on the willingness of the Serco prison staff to recognise that her existing medical regime was valid, and so obey the policy.

The main change heralded for the new policy was a greater focus on self-identification. The old policy focused on ‘legal gender’ as indicated by the prisoner’s birth certificate or Gender Recognition Certificate: trans prisoners with GRC had to be treated exactly like cis prisoners, while other trans prisoners were not to have their gender recognised. It went so far as to say that if it was later established that a prisoner’s ‘legal gender’ was different to what the Prison Service had assumed, they must be transferred immediately: if a woman was only later outed as trans, she would be transferred to a men’s prison, or vice versa.

The new policy claims to replace this focus on ‘legal gender’ with reference to the prisoner’s own gender identity. So surely the new policy would have treated Jenny Swift better?

The reality is murkier. In the document, space is spent emphasising that not all trans people seek surgery or GRCs, and that these people’s genders should still be respected. Yet the policy dictates that people be placed in prisons in accordance with their ‘legal gender’. For a trans person without a GRC to be placed in a prison in accordance with their gender identity, they must submit a request, and a Transgender Case Board has to convene to make a decision. This board collects ‘evidence’ about whether the prisoner is living in the gender they identify, and categorise the strength of their case.

So, even under the new policy, Jenny Swift would have had to wait in a men’s prison for weeks or months for a board to convene and evaluate whether she was ‘really’ trans.

This approach, of course, reflects the dark heart of the way our society views trans people. There is a pattern here: the medical establishment, the legal establishment and the prison service all view trans identities with deep suspicion. They all require that trans people provide ‘proof’ that they are ‘really’ trans in order to be treated with basic dignity and afforded access to services. Disgusted and scared by the very existence of trans people, they focus conversation onto the straw man of ‘fake’ trans people merely acting up for attention. This creates an excessively high bar which trans people have to pass to get access to the respect and resources they need. Even those who pass this bar are never afforded quite the same respect as cis people. In court, Vicky Thompson’s solicitor argued that she should be placed in a women’s prison because she was “essentially a woman”.

This pattern is also reflected in the media coverage of these incidents. Vicky Thompson’s case was covered widely and was commented on by members of parliament. Tara Hudson’s case received so much media attention that she was moved to a women’s prison. Jenny Swift’s has received less coverage; Joanne Latham’s barely any at all. The difference between these cases? Vicky Thompson and Tara Hudson fit society’s stereotype of trans people: they came out as teenagers, they passed well. Jenny Swift had come out only recently, as an adult. Joanne Latham had come out only recently, and had expressed doubts and changes of identification over time. This period of doubt and confusion, common to many trans people, was used as clear evidence against the reality of their identities.

The crimes these four women were convicted of also clearly played a role. Joanne Latham, whose death received the least media attention, was convicted of the most serious violent crimes. Tara Hudson, who’s story is most positive, was convicted for the least serious crimes.

These women’s deaths are a shameful indictment of the prison system and how it treats prisoners who are trans women. Prisoners are some of the most vulnerable and disempowered people in our society – those gaoled for longer sentences and for more violent crimes which remove public sympathy especially so. Where this intersects with other oppressions, as in the case of trans women prisoners, the state has a particularly strong duty of care. Yet by putting them in hostile environments and refusing to respect a fundamental element of their identities, the state killed these women.

We should be critical too of the society that legitimises this treatment. Complaints of misgendering, microaggressions and transphobic jokes are sneered at by the right as the hurt sensibilities of precious millennials. These deaths unequivocally give lie to that view: the transphobic attitudes that are expressed and perpetuated in these ways are what allow the Prison Service to take such a blasé attitude to the mistreatment of trans women in its care. Without a fundamental culture change, new and improved policies will not filter down into actual practice, and the mistreatment of trans people in custody will continue.

And by the way, we shouldn’t pretend that we have a good understanding of the scale or nature of this problem. The promised statistics from the DoJ, when they came, identified 70 trans prisoners in 33 prisons, of whom 14 were trans women. Yet these statistics did not count trans people with GRCs, trans people who have disclosed their identity to the prison service and are awaiting a Case Conference, or, of course, trans people who have not disclosed their identities. As far as I can tell, none of the three women discussed here would therefore have been counted in these statistics. In the current climate of crisis in the prisons service, with self-harm and suicide at an all-time high, we cannot truly assess this problem without reliable statistics.

DoJ policy documents:

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