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28 January 2016

Deciding which jail to send a trans prisoner to isn’t always clear-cut. And accusations of bigotry don’t help

There are hard choices and conflicting rights that we need to navigate when updating the law on gender.

By Helen Lewis

The first report from the new women and equalities select committee was a dog that didn’t bark. Why was there so little reaction? It was on transgender rights, after all: a vital subject and a topical one, given Caitlyn Jenner’s and Kellie Maloney’s recent high-profile transitions.

That it provoked so little discussion suggests one of two things: either that the recommendations were so commonsensical that there could be no opposition, or that too few people are prepared to engage with the detail. It’s quite easy to bang out 1,000 words on “why we should all support trans rights” but it’s harder to outline what those rights are, or what practical measures are needed to establish them in law and policy.

The report contains many sensible recommendations that any progressive should support. NHS waiting times for surgery are too long and should be reduced; GPs would benefit from further training; and specialist provision, which is patchy outside London and overstretched within it, could be vastly improved. Police officers should also be given training and encouragement to record hate crimes and to pursue action against perpetrators; schools should institute strong anti-bullying measures.

It doesn’t take long, however, before you notice the thread that links all of these aspirations: money. Public services need more of it to do more. Yet the committee doesn’t have any financial powers, so instead there is a call for an “action plan”, two words that should strike fear into any campaigner’s heart. It is hard not to suspect that a light coating of rainbow sparkles has been dusted over an unpalatable truth: at a time of austerity, helping a marginalised but electorally insignificant group of people is unlikely to be a government priority.

After the report was published, the committee’s chair, Maria Miller, expressed surprise at how little pushback there had been, particularly over the criticisms made of the NHS. This suggests that many of its suggestions are less bold than they might seem; even mainstream Conservatives feel that they have to pay lip-service to providing more funding for the NHS.

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Instead, Miller said, the backlash came from “individuals purporting to be feminists”. She dismissed their concerns about the erosion of single-sex provision in, say, rape shelters as “extraordinary” bigotry; the Tory dinosaurs weren’t getting upset about it, after all. An alternative explanation is that those dinosaurs don’t give a tuppenny toss about rape shelters either way.

The central debate here is slightly snoozesome if you’re not up on all the Equality Act buzzwords but the idea, in essence, is this. Currently, to change their gender in law, transgender people have to apply for a gender recognition certificate, which is issued by a specially convened panel after two years of applicants “living in their acquired gender”. Many trans people find this level of bureaucracy intrusive and they object to having to convince outsiders of something they feel is the inner core of their personhood. To me, the system has always seemed like a necessary evil, similar to the citizenship process: you might feel British but you have to take a test and an oath and pay taxes.

Miller believes that this process should be scrapped and that changing gender should be as simple as filling in an online form. This would simplify and dignify a procedure that many have found dehumanising – yet there are potential downsides, as you would expect with any policy change. Take prison provision, whose present rules suggest that inmates be housed in the appropriate prison for their gender, but allow room for discretion. The committee’s press release glibly mentioned the “recent deaths in custody of two trans women” but a closer look at both cases (something that the report doesn’t bother to do) reveals just how difficult this area is. In November 2015, Vicky Thompson, 21, was found dead at HMP Leeds, a male prison. Thompson had not undergone surgery but had lived her adult life as a woman and had asked to be housed in a women’s prison.

The second case was that of Joanne Latham, found hanging at HMP Woodhill, also in November. Latham, then Edward, was jailed in 2001 for the attempted poisoning of a woman; he received additional life sentences for attacking another inmate in 2007, then trying to stab a fellow patient at a secure hospital in 2011. He had a history of mental illness and was so dangerous that a court ruled he could be handcuffed to two nurses even when seeing his lawyer. Latham had only recently changed her name and had not requested a transfer; a prison officer told the inquest that it was hard to tell if her plans for transition were serious, as “he went through phases”. Despite this, the two cases have been smudged together as examples of the same thing – transphobic prison authorities denying someone the right to define their own gender.

It’s not bigoted to ask if putting Latham in the women’s estate (which is ill-equipped for violent offenders) would have been the ideal outcome for her or for any potential cellmate. Yet that is the logical endpoint of Miller’s system: prison officials would lose the discretion that they have. (In January, a trans woman who raped a 15-year-old girl was sent to a men’s prison; there was less outcry about her case. Saying that it is obviously transphobic to question housing a sex offender with a penis in a women’s prison would require serious chutzpah.)

The prison issue is an example of the hard choices and conflicting rights that we need to navigate when updating the law. I can see an argument for housing Vicky Thompson in a women’s prison; I struggle to do so with Joanne Latham. This debate needs fewer rainbow sprinkles, fewer accusations of feminist bigotry, and more recognition that sometimes there are no perfect solutions. Oh, and more money would be good, too.

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This article appears in the 27 Jan 2016 issue of the New Statesman, Should Labour split?