To those who believe that transwomen are women, the answer is simple: transwomen must serve custodial sentences in the female prison estate.
Objections can be dismissed as transphobic attempts to exclude one type of women just because they had the misfortune to be born with the wrong set of genitals.
However, while I might be a transwoman I am also a science teacher. In 2017, I rejected the transwomen are women argument when I could not defend it from the most basic challenge:
- Transwomen are male
- Women are female
- Male people are not female people
- Therefore transwomen are not women
We may long to be the other sex, but we might as well long to live for ever. Science cannot be fooled even if people can be. As a falsehood it is dangerous to both women – who lose the ability to control their boundaries from males who choose to identify as transwomen – and children who are sold a totally unrealistic vision of a future where they can choose their sex.
But in 2019 I argued that exceptions could be made for transwomen who had completed a medical and surgical transition:
My request to be housed in the female estate would be based on my sex characteristics. Flesh and blood is more important than feelings – or even legal paperwork – when housing prisoners.
In England and Wales that approach appears to predate the Gender Recognition Act 2004 (GRA), which made that paperwork available.
But I’ve changed my mind.
When transwoman Stephanie Booth was sent to Askham Grange (a women’s prison) in 1989 there were far fewer transwomen in society, and it could be assumed they had been chemically and surgically castrated.
Today’s world is very different. Firstly, there are more of us coming out and we are far more visible in society. Secondly, the definitions have changed. The transsexuals and transvestites of 1989 have been subsumed under today’s transgender umbrella. Winding the clock back 30 years, would society really have countenanced male transvestites in the female estate? And thirdly, the law can no longer demarcate the former categories even if we wanted it to. In 2017, the European Court of Human Rights (ECHR) reaffirmed that Article 8 of the European Convention of Human Rights guaranteed the physical integrity of transgender people. As such, gender recognition processes that would lead to sterilisation were seen to be a violation of human rights. In the eyes of the ECHR, a woman can have a penis.
But in the UK the GRA had already created legal fictions that meant legal women could father children (and legal men could carry them). Those who question such bizarre events are denounced as transphobes and bigots, while new terminology – such as menstruators and cervix-havers – has sprung up to avoid offending prickly trans people.
But the prison service needs to work with facts rather than fictions. Women have made the case for single-sex prisons to mean just that – single-sex – and they are right. Transwomen may well need specific protection in the prison estate but that should not come at the expense of women – another vulnerable group. The female estate is small. In 2019 women comprised just 4 per cent of the prison population. By comparison, in a 2005 study, Långström and Zucker found that almost 3 per cent of men had reported at least one episode of transvestic fetishism. This is not a vanishingly small group of people who might conceivably identify as transgender and seek transfer to the female estate.
There is no reason to suggest that the offending profile of transwomen is any different to men – we are all males – apart, that is, from when it comes to sex offences. In 2018, the BBC Reality Check team found that 48 per cent of transgender offenders were serving time for a sexual offence (the figure for the general prison population is just 19 per cent). This is not a group that should be housed with women.
Let’s be clear, not all transwomen are sex offenders, and misadventure also leads to custodial sentences. Personally, I worry that a momentary lapse of concentration on the highway could lead to disastrous consequences. While I always try to drive carefully, nothing is certain in life.
But we do not house males with women because they happened to have caused death by careless driving, and we should not make an exception for transwomen, no matter how safe they appear to be. Bending the rules for one makes it much harder to exclude others. Besides, there is a principle involved: transwomen are male, and females must have an absolute right to single sex accommodation.
That leaves the question of where to accommodate transwomen.
While transgender units have been set up – for example at HMP Downview in 2019 – facilities for transwomen should be maintained within the male estate rather than the female estate. That said, I would not want to be housed there myself, whichever estate they fell into. With a small population and one skewed towards sex offenders, I could find myself far from home in a higher security classification than necessary.
Rather than campaigning to infringe the rights of women, transwomen should be calling for our own rights to be protected within the estate designated for our sex. We should demand single-cell accommodation, separate washing and toilet facilities, and further protection that may be necessary to keep us safe.
For those of us whose bodies may look more like women’s bodies than men’s bodies – certainly in the shower – that is a must. But whatever their bodies might look like, transwomen who do not identify with men should not be forced to dress like men. Adjustments can be made. But nothing can change our sex: we are all male and it is in the male estate where we belong, me included.
So, no, I would not request a transfer to the female estate, and I call on other transwomen to do the same.
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 19 January 2021: The prison service needs to work with facts, not fiction.