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28 October 2015updated 30 Oct 2015 3:03pm

Why has the trans woman Tara Hudson been sent to an all-male prison?

Tara Hudson must now endure cruelty because the authorities following the rulebook only read half of it. For trans people, that is the reality of justice in Britain today.

By jane Fae

It was Monday that the case of Tara Hudson, a trans woman sent by Bath Magistrates to a men’s prison to serve out a 12-week term for assault, first streaked across my Twitter feed. Within two days a petition, now tracking 50,000 signatures, had begun, alongside a hashtag campaign of support: #ISeeTara.

The issue is also being raised with the Ministry of Justice by Hudson’s local MP, Ben Howlett, and Lib Dem leader Tim Farron. A letter-writing campaign has begun: demos outside the prison and outside the MoJ are being planned.

How did we get here? At the individual level, the issue is either the failure of Hudson to change the gender recorded on her passport or, acccording to the MoJ, the fact that she does not have a gender recognition certificate (GRC), which is awarded by a panel once a person has lived in their new gender for two years. The MoJ have not said this in so many words: it’s just that every time they are asked why she has been sent to a men’s prison, they respond by talking about “legal gender” and GRCs.

Why Hudson would not have a GRC is unclear: we do not know precisely what surgeries she has had, nor why she has not got a GRC. I don’t have one. I will not, because I absolutely refuse the right of the state to demand money from me for the simple purpose of acknowledging who I am. In that sense, the GRC is NOT like a passport or driving license. Because it says that my gender is dependent on the ratiocination of some state apparatchik, who obviously knows who I am better than I do.

A growing number of trans men and women agree with me, objecting to this imposition for a variety of reasons. It’s a gender tax. State intrusion. The fact that flawed equal marriage legislation effectively creates a “spousal veto” over obtaining a GRC (because your spouse’s agreement is needed to convert a heterosexual marriage to a same-sex marriage, or vice versa). One trans woman I know simply will not obtain a GRC until this veto is removed. Her spouse doesn’t object. She does. In principle.

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Many in the trans community worry that the decision is punitive on the part of the Ministry of Justice – an implicit rebuke to trans people, who questioned the legitimacy of the gender recognition system in a petition this summer. (The Ministry of Justice dismissed the petition curtly earlier this year, but the issue is likely to come up again as the women and equalities select committee investigates transgender issues.)

The situation is troubling enough for us binaries (those of us who consider ourselves to have a gender); the Gender Recognition Act, passed in 2004, offers nothing at all to the fast-growing numbers of non-binary trans people. They have to pick a box.

 Even if we accept that the situation over GRCs is under review, the most troubling aspect of Tara Hudson’s case is that the MoJ are apparently ignoring their own guidelines, published in 2011. 

These rule that someone with a GRC should go to the prison appropriate to their new gender. But the guidelines go on: where there is no GRC, there are many factors to take into account. Identity. Steps taken. Risk to the prisoner. To other prisoners. All of which are meant to be addressed before the guilty party arrives at prison.

And on what is known so far, Tara Hudson ticks each and every one of these boxes. Hormones. Treatment. Some surgery. At serious risk in a male prison. Combined, these factors make the decision to incarcerate her in an all-male prison questionable.

In the general prison population she is at immediate risk of assault, of rape. Which, of course, is why she almost certainly won’t be placed in the general population: will be consigned to a euphemistically named – and expensive segregation regime.  Otherwise known as “solitary confinement”. Otherwise, “cruel and unusual” punishment that in many peoples’ books amounts to a form of torture.

The mere fact of being deemed a man, after an entire adult life spent as a woman is serious knockback to Hudson’s psychological health, too. Behind the story there are hints already of depression: what price Tara’s state of mind after three nights in all-male Horfield?

That is why this case has provoked so much rage. Tara Hudson must now endure cruelty because those who sat in judgment of her deemed they had no alternative but to follow the rulebook. Except they didn’t: they only read half of it.

For trans people, that is the reality of justice in Britain today.