Trans women prisoners policy update bars nearly all from the female estate – but that was already the case
Content warning: This article contains discussion of genitals and sexual assault.
On 25 January, the government announced an update to its transgender prisoners policy. Under the new rules, trans women who have “male genitalia” or who have been convicted of a sexual offence will no longer be held in women’s prisons. This follows plans announced on 4 October of last year by former justice secretary Brandon Lewis.
So what, exactly, is going to change? Currently, there are 230 trans prisoners being held in England and Wales. Of these, 168 are trans women, 42 are trans men, 13 are non-binary, and a further seven did not specify. This is from a total population of 79,800 prisoners.
Before January’s update, however, it was by no means the case that trans women were sent to the female estate as a matter of course. Individual trans prisoners were assessed for risk – both to and from other prisoners.
As things currently stand, there are six trans women housed in the women’s estate. It’s regarding these six women, and the potential for others like them, that the government has felt the need to update its policy wholesale.
The implicit assumption is that a trans woman in possession of a penis is a danger to cis women. However, this does not line up with current statistics. Of the six trans women in the women’s estate, precisely none had committed sexual assaults in prison. According to prisons minister Damian Hinds:
Since the 2019 strengthening of our policy there have been no assaults or sexual assaults committed by transgender women in women’s prisons and last year we further strengthened that policy.
The Guardian saw fit to report the policy changes with the headline:
Trans violent offenders banned from women’s prisons in England and Wales
But there’s a conflation going on here, both in the reporting and in the policy itself. The other group of trans women the announcement affects squeaks in on the subheader:
New rules also cover transgender women ‘with their male genitalia intact’, says Dominic Raab
The choice in this framing is indicative of the level of the discussion here. “Trans violent offenders are banned” is the headline, while ‘and nearly all the rest, too’ slips in in smaller print.
For trans people living in the UK, this will be quite familiar. The fact of having a penis is treated as synonymous with the threat of sexual assault. The very worst that trans people can be is routinely placed at the front of peoples’ minds. This makes it acceptable to do whatever the public pleases to all trans people.
According to 2022 polling by research group More in Common, 46% of Britons believe that trans women are women. This is compared to 32% who disagree, with the rest being unsure. However, this belief is conditional – but any trans person could tell you that.
That 46% who deign to recognise this basic fact of who trans women are, drops as soon as they are asked whether trans people should be granted rights according to their gender. For example, 39% of people believe that trans women should be able to access women’s domestic violence services when they are raped.
38% of the public think trans women should be able to socially and legally change their genders. The difference between those two figures is 8%. The 8% believe trans women are women until they wish to marry, or die – then they become men, or something else. A similar 38% believe trans women should be able to use women’s toilets. So, another 8% believe trans women are women up until they need to piss outside their homes. Then they become men again.
The number falls again when considering where the public believes trans women should be imprisoned. Just 24% of Britons believe that a trans woman convicted of a non-violent, non-sexual crime should be sent to the women’s estate. To clarify, that means that 22% of people believe that trans women are women, but they should be locked up in prisons with men anyway. They are women provided that they do not steal, take no illicit drugs, and pay their taxes.
All of this is to say that, in the public imagining, the trans woman is a special kind of woman. She is a conditional woman. She is a woman provided she remains unnoticed and unobtrusive. Trans women are women until they’re a bit too loud. They’re women until they take up space. Provided that they shrink themselves, that they behave, they are permitted their gender.
For a cis person, gender is inalienable; it can’t be taken away. For trans people, however, this fundamental aspect of humanity is treated as a reward for compliance.
The new prisons policy changes little in reality; there are vanishingly few trans women in the female estate already. What it does do, however, is deepen the conflation of trans women’s genitals with the threat of sexual assault in the public consciousness. It exacerbates a manufactured culture war against trans people during a time of increasing violence against LGBTQ+ people.
Most of all, it confirms a fundamental truth of Britain’s tolerance of transness. Trans people can have their gender, provided that doesn’t have to mean anything at all.
Featured image via Unsplash/Jonny Gios
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