The practice of housing males who identify as women in women’s prisons in the UK is not new. It goes back at least to the 1980s. This history is set out in a paper by Professor Michael Biggs, Queer Theory and the Transition from Sex to Gender in English Prisons. Biggs provides an excellent overview of the criteria that allow males to be housed in women’s prisons and how these have changed from genital surgery to legal sex to gender identity.

The original criterion males had to fulfil in order to be housed in a woman’s prison was that they had had genital surgery prior to conviction. The history of housing such males in women’s prisons goes back to the 1980s: in 1983, ‘Gloria’ Greeves was sentenced to 18 months’ imprisonment for living off immoral earnings, a crime that could only be committed by a man. He served his sentence at HMP Holloway, a women’s prison. The justification for housing males who had had genital surgery in women’s prisons was stated by the then Director General of the Prison Service in 1994:

The principal criteria is the most obvious physical characteristics of the person concerned and their ability to integrate with other inmates. A male-to-female transsexual who has undergone surgery and hormone treatment would therefore be more appropriately allocated to a female establishment.

At that time there was no established right to genital surgery for prisoners: only males who had already had genital surgery before they were imprisoned could be housed in a women’s prison. This changed in the late 1990s when several prisoners won their legal battle for the right to have genital surgery during imprisonment. Here, they relied on the prison service commitment to providing prisoners with treatment equivalent to that provided by NHS. ‘Reassignment’ surgery was by now an established NHS treatment, meaning that prisoners were entitled to it. The existing criteria for housing males in female prisons meant that after this surgery, these male prisoners could be transferred to the female estate. Reports of cases at that time leave it unclear whether the surgery necessary to qualify for a female prison was orchidectomy (removal of testes) only, or whether removal and inversion of penis was also required.

The prisoners who brought this legal action included John Pilley who had been sentenced in 1981 to life for kidnap and attempted murder. In 1992, during his imprisonment in the male estate at HMP Gartree, he ‘transitioned’, changed his name to Jane Anne, started hormone treatment and began legal action to obtain ‘reassignment’ surgery. In April 1999, he underwent surgery and was then transferred to the female estate at HMP Holloway. That was not the end of the matter as seven years later he changed his mind and in 2018 underwent ‘reversal’ surgery and was transferred back into the male estate.

Since the late 1990s the trans advocacy group Press for Change, lead by Stephen Whittle and Christine Burns, had been campaigning to relax the requirements for genital surgery so that pre-operative males could also be housed in women’s prisons. However, changing the criteria to enable pre-operative males to be housed in women’s prisons had little support and even after the Gender Recognition Act (2004) came into force, males could only access female prisons if they were post-operative. This points to another way in which ‘legal women’ were not automatically treated the same as ‘biological women’: a male with a Gender Recognition Certificate stating he is legally a woman would not automatically have the right to be housed in a women’s prison. He had to have genital surgery first.

In order to obtain genital surgery, males were required to ‘live as a woman’ for a period of two years and clinicians eventually decreed that male prisoners could only achieve this in the female estate. Male prisoners were in a Catch-22 situation: they were entitled to genital surgery but could only obtain it if they were in the female estate. However, they could only be housed in the female estate if they had had genital surgery.

The 2009 Judicial Review brought by Mark/Karen Jones, who had been convicted of attempted rape and had previously been imprisoned for manslaughter, established the right to be transferred to a female prison before surgery. Jones had obtained a GRC in the male estate and was on hormone treatment, but his entitlement to surgery could only be met by placing him in a women’s prison. His right to this surgery had already been established in the 1990s therefore keeping him in the male estate would have interfered with his legal right to treatment. Jones won his legal case, was transferred to a women’s prison and subsequently had ‘reassignment’ surgery.

The disregard shown towards female prisoners is illustrated by the frankly shocking statement given by Dr James Barrett from the Gender Identity Clinic who wrote a report supporting Jones’s application to be transferred to a women’s prison:

… in no very great time (perhaps a couple of months) it will become clear that she is so widely accepted as female in that [segregation] unit [in the female estate] that location in the main prison will follow.

I think that such acceptance will pretty generally apply in the main [women’s] prison also, although there will probably always be a small number of prisoners who will choose to make an issue of the matter because they are the sort of women who enjoy conflict.

It is hard to view this as anything other than an expression of contempt for women in prison.

In 2011 the criterion to permit males to be housed in women’s prisons changed from genital surgery to ‘legal gender’. This meant that males with a GRC could be housed in women’s prisons, with no requirement for reassignment surgery.

The next change to the criteria allowing males to be housed in women’s prisons was heavily influenced by queer theory. Biggs describes this as a self-fulfilling prophecy which has constitutive power. In other words: if I say I am a woman, it makes me one. This aspect of queer theory influenced the Gender Recognition Act (2004), which was the first law in the world allowing someone to change legal sex without undergoing any physical change: the constitutive power of an individual’s belief about themselves is sufficient.

In 2015 activists successfully campaigned to have a violent male criminal, Raymond Aaron David/Tara Hudson moved from a male prison to the female estate. Hudson had been sentenced to 12 weeks imprisonment for assault and had eight previous convictions. He had not had genital surgery nor did he have a GRC. Allocation to the male estate was, therefore, clear. However, Hudson’s supporters argued that because he identified as a woman, he should have been placed in a women’s prison: because he said he was a woman, it made him one. The campaign was supported by the local MP Ben Howlett and the then leader of the Liberal Democrats, Tim Farron. Hudson was duly transferred to HMP Eastwood Hall, a women’s prison.

In December 2015 the Government announced a review into the care and management of transgender offenders. Jay Stewart, the Chief Executive and co-founder of the trans advocacy group Gendered Intelligence acted as an independent adviser. Submissions included evidence given by transgender prisoners. No female prisoners were invited to submit evidence. The review was published in 2016.

The starting presumption was straight from queer theory: to respect someone in the gender in which they identify. The review concluded that ‘allowing transgender offenders to experience the [criminal justice] system in the gender in which they identify will represent the most humane and safest way to act.’ It is worth restating: evidence of women prisoners was not sought and the impact on them was ignored.

The six-page report was translated into 58 pages of regulations which came into effect in 2017. There was no acknowledgement of risks to women prisoners nor that the system could be open to abuse. Both these risks had been highlighted by the British Psychological Society and the British Association of Gender Specialists back in 2015.

These new regulations meant that as well as allocating males with a GRC to a women’s prisons, a new criterion was introduced: gender identity. Genital surgery was strong evidence of a male having the ‘gender identity’ of a woman, but so were other things including ‘gender performativity’ and ‘change of name’. This meant that a male without a GRC and without any ‘reassignment’ surgery could be housed in a women’s prison if he identified as a woman.

The adoption of this policy coincided with an exponential growth of male prisoners identifying as women and enabled the male known as Karen White, and others, to be imprisoned in the female estate. You can read more about some of the males who have been imprisoned in women’s prisons in the Case Studies section of the website.