Gender Recognition must be grounded in objective evidence

As the Government Consultation on reforms to The Gender Recognition Act 2004 comes to a close, we should reflect on what is at stake. As a transsexual person I have a particular interest. While I understand the superficial attraction of self-declaration, a procedure based purely on an assertion of our own feelings, any process lacking objective evidence is vulnerable to abuse.

Remarkably, the prison service has moved ahead of the law, and it offers us a glimpse of a possible future. New policy was issued in November 2016 following a review on the Care and Management of Transgender Offenders under the oversight of Peter Dawson, Deputy Director of the Prison Reform Trust, and Jay Stewart, Director of Gendered Intelligence. That review was provoked by three distressing cases the previous year involving transgender women incarcerated in the male estate. Tara Hudson became the subject of a petition signed by 150,000 people that called for her to be moved to a women’s prison; shortly afterwards Vikki Thompson and Joanne Latham tragically committed suicide.

The team gathered evidence from ‘many in the transgender community’ and met with transgender prisoners serving both long and short sentences. In the published review the authors asserted that:

‘People who are living in a gender different to that of their assigned sex at birth should, as a general presumption, be treated by offender management services according to the gender in which they identify.’

They went on to declare that they had seen no evidence that being transgender is in itself linked to risk.

Perhaps if they had consulted women’s groups or advocates for female prisoners, they may have been warned that men who exhibit dangerous sexual predilections towards women will seek out any safeguarding weakness in order to intimidate, harass and abuse women. When the prize is a transfer to the female estate they may well choose to identify as transgender. In previous years the temptation may have been moderated by the stigma associated with being transgender, but across society shame has been replaced by celebration. The attraction of circumventing sex segregation may now be irresistible, especially when no medical or surgical treatment is required.

Less than two years on, a freedom of information request found that of 125 trans-identified prisoners held in England and Wales, 60 had been incarcerated for sexual offences. The reason why a prisoner identifies as transgender is known only to themself, but the abuse is inflicted on others. For example, the four female inmates at New Hall women’s prison who were sexually assaulted by Karen White a convicted sex offender and rapist.

Policy needs to be reviewed before more damage is done: to women forced to share accommodation with intact male sex offenders, and to transgender women who find that their own requests to be transferred to the female estate are denied by officials who feel they cannot be too careful. We need to reconsider approaches grounded in reality. There is a material difference between a transgender person who has changed their sex characteristics and a chancer who bases their claims on their supposed feelings.

Objective evidence must take priority in in order to maintain confidence and respect in the process. The experience of the prison service should be a warning to the government. Women need to be able to rely on the sex segregation that underpins safeguarding procedures, and transgender people need the confidence of society when strict segregation is relaxed for their benefit. If, like in the prison service, objective evidence is replaced by an assessment of feelings, trust may be replaced by suspicion and assurance by fear. That is no way for anyone to live.

Debbie Hayton is a physics teacher at a secondary school in the West Midlands; she is also a campaigner and advocate for transgender people.

* This article was first published by The Centre for Crime and Justice Studies on 9 October 2018: Gender Recognition must be grounded in objective evidence.