Thread by @fairplaywomen

#womensprisonJR

Discussions happening around whether a policy decision taken without knowledge of all relevant information can be lawful

Was it unlawful that SSJ approved the trans prison policy without being made aware than the single-sex exceptions could have been included/1

The trans prison policy does not allow for consideration of all relevant risks - the opportunity to assess whether excluding a transwomen from women's prison can meet the proportionately test /2

The need for the policy to avoid discrimination to female prisoners must be fully justified. Not just the need to house transwomen somewhere. /3

A policy can be discriminatory if it indirectly discriminates against females - putting females to a particular disadvantage compared to males /4

Its not necessary for ALL women to suffer disadvantage by the policy - just probable disadvantage for some in that group /5

Counsel for the defend now speaks /6

Discussing initial allocation of a prisoner. They must be allocated according to their legal gender. This policy is aimed to stop an incident lie Karen White happening again (remanded in women's prison despite being legally male /7

However, this means that a transwomen with a GRC WILL be initially allocated into the female estate. Defence counsel argues that this is a proportion policy. It would be wrong to allocate a transwomen with a GRC into a male prison prior to risk assessment /8

Prison governor would have to make sure all 'risks should be managed'. Judge asks which staff would be making that risk assessment. Counsel doesn't know for sure and takes instruction /9

This means a transwomen with a GRC is given a less rigorous risk assessment on first allocation compared to a transwomen without a GRC - the latter goes through a full transgender case review. /10

Are GRC's actively recorded? Defence counsel says No. The reason is its a breach of Section 22 of GRA2004. There is NO centralised list kept. /11

Justice H says surely prison needs to know who has a GRC for their policies to work. Counsel says its possible a prisoner may have a GRC without prison knowing. Prison only knows if the trans person discloses /12

Justice Swift: Therefore the policy only covers prisoners who acquire a GRC in prison. There's no way to know if someone has a GRC before they go to prison. /13

Defence counsel - there's no way to know if someone has a GRC and there are not many of them. The policy adequately covers most trans people who do not gave a GRC or who disclose they have. /14

(the implication here is that some male-born prisoners will get into women's prison without a risk assessment being done - because they don-t have to disclose they have a GRC - this is the big problem with privacy protections in the GRA2004!) /15

This case is showing us how in practice someone with a GRC is treated differently to someone without a GRC - the GRC is considered to have more weight - there needs to be more of a reason to exclude them. This is one of the main arguments we make against self-ID /16

Supporters of GRA Self-ID say that having a GRC doesn't impact use of the single sex exceptions - here's is a clear example of where it does! /17

The target cohort for Ewing is high risk transwomen with a GRC who's behaviour cant be managed in free association with women - but can be managed under supervision. /18

A high risk transwomen without a GRC will go to the male prison. This is the clearest example of how having a GRC has material advantage to a trans person in terms of accessing a women-only space /19

We are constantly told that having a GRC makes no difference to implementation of single-sex exceptions. That means either prison isn't using the SSE in their policy OR they are misinterpreting that a GRC gives extra weight when considering proportionality for the use of SSE/20

In Jan 2019 minister was asked to approve transfer for 3 high risk transwomen into E-Wing. This was before E wing policy was developed /21

3 options given to minister in Jan 2019 - all three go into E wing, all three go into general population, or put them in an E wing on the male estate. They recommended the first because it was important to provide transwomen with 'association with other women'. /22

In July 2019 the final policy is placed before the minister - this is to have E-wing on women's prison for high risk transwomen with a GRC. /23

'directions of policy travel' were showed to minister as far back as November 2018 /24

Late submission to court in October 2020 discussed. Minister decided not to waive privilege to what was in the papers seen at the time. But Lucy Fraser confirms now that the policy decision made was no different to what she's make now /25

Defence counsel makes the point that in effect it doesn't matter if the minister didn't have all the information needed when making the policy decision. Because the decision made in light of all the info is the same /26

Court rises for lunch /27

2pm - court rises for the afternoon /28

Library and gym happened off Ewing - happens separately and escorted /29

Lord Swift struggling to see how a policy for transwomen with a GRC can be applied if MOJ don't know who all the transwomen with a GRC are! yes! /30

defence counsel says we know "some of them". We know anecdotally. Justice Swift says the policy can't be based on anecdote. /31

Justice Swift is "disturbed" by the fact there's no clear answer on how many transwomen in GRC there are in womens prison. Judge needs to assess the scale of the risk. He questions the reluctance to provide the data /32

Justice Swift rather cross that the full data set was not provided when he asked for it overnight. /33

Defence Counsel is now raising evidence submitted by Nicola Williams. 5 times more assaults in prison by trans compared to women. Defence says numbers too small /34

Now disputing fact that if half of transwomen have a sexual conviction this doesn't mean the risk is increased on an individual basis. Because in effect only the safe ones go into the women's prison and if they are dangerous they are supervised. /35

No regard made to the impact of women forced to associate with male-born sex offenders whether supervised or not /36

Defence asserts that the trans prison policy (that always male-born sex offenders supervised association with women) does not breach article 3 of human rights "inhumane or degrading treatment" of the women. /37

Defence says women will not be harmed in general by being forced to associate with males. Because prison forces women to associate with lots of different types of people. /38

While some women might not want to share with transwomen - it should only be about specific transwomen and not transwomen in general.

No acknowledgement that women's reasons for not wanting to share is because they were born male - not because they are trans /39

Defence asserts there's no easy answer of where to high risk transwomen should be held. Striking that balance will not please everyone and there have been claims from both sides. /40

Judge Swift sees this as an indirect discrimination case under EA2010. The issue to hand is whether the right balance has been struck /41

Defence says there's no requirement to use the single sex exceptions. /42

They mitigate the risks of having a high risk transwomen with a GRC by putting them in E wing - putting them in the male estate is not the only policy option open to them /43

Defence is saying putting them in E wing IS an application of the single sex exceptions (treating transwomen with a GRC differently to females). They only move to male estate in exceptional circumstances. /44

Having a GRC is a 'weighty matter' that should be taken into consideration when balancing rights of all groups.

More evidence that having a GRC give people extra rights to spaces reserved to those born the opposite sex /45

Defence explaining to judges how a transwomen with a GRC could have undergone no medical treatment whatsoever. Judges questioning what 'living as' a woman means /46

Judges asking for sources of authority of what "reassigning other attributes of sex" means in the definition of the gender reassignment protective characteristic. Defence says getting a GRC must fall under that. /47

Defence says single sex exceptions can apply to prisons because allocating prisons into a prison is considered a 'service'. Judges pushing back on that. Isn't is all a public function. /48

Judge wants to know the reason why defence made the concession that single-sex exceptions apply in prison for the reason that its a service - rather than saying they apply because its a public function. Defence to reply in writing /49

**This is such an important case - this is the FIRST time the interactions between single-sex exceptions and GRC have ever been tested in court.** /48

Claimant counsel rises /49

KM says policy should direct to have regard to the impact on biological women in the women's estate because they are likely to have a history of sexual abuse and trauma /50

KM: A transwomen with a GRC will always be initially allocated to a women's prison - the need for any risk mitigation is decided by a governor - not a complex case board. This procedure is not robust /51

KM: Its inconceivable that the prison service doesn't know how many GRC holders are in prison when they say all of them have acquired their GRCs while IN PRISON. /52

Court rises - judges leave to 'take stock' /53

Judges return /54

Wants a witness statement on statistics:
how many trans prisoners were in prison as a whole
how many of those had a GRC
how many trans prisoners are on E wing
how many in the general population of women prison /55

how many of those have a GRC
how many trans with GRC are in mens prison
how many biological women are in the men prison estate /56

What are the 'exceptional reasons' why a biological woman would be moved to the men's estate. /57

** these are questions we've been wanting answers to for years - it very good that this has been ordered my the court*** /58

Court rises

/end