On 8th December 2015 Caroline Dinenage, the then Under Secretary of State for Women, Equalities and Family Justice announced a review into the care and management of transgender people in contact with the Criminal Justice System (CJS). The review coincided with work the National Offender Management Service (NOMS) was already doing to refresh the Prison Service instruction (PSI) 7/2011 (the care and management of transsexual prisoners) which set out rules and guidelines for how transgender people were supported in the CJS. This work was also in response to concerns raised after high profile events about the experience of transgender people in contact with the CJS.
The review sought to develop recommendations to shape prison and probation services for transgender people, and also considered the approach to transgender people in the youth justice system. The terms of reference for the review can be accessed here.
The review was led by the Ministry of Justice (MoJ) but had independent oversight from Peter Dawson, Director at Prison Reform Trust and Jay Stewart, Director at Gendered Intelligence. Clinks submitted a written response to the review, and we gave oral evidence during two roundtables hosted by the review team.
The MoJ has now published conclusions from the review, statistics about the number of transgender people in prison and NOMS has published a new PSI (17/2016: The care and management of transgender offenders) to replace PSI 7/2011.
Key conclusions - supporting change
After engaging with the review process and submitting our own response, it is very positive to see the MoJ and NOMS respond to the concerns and issues raised by us and other partners. On the whole, the conclusions from the review allow for much needed flexibility and give transgender people more choice and autonomy - where possible. If their wishes cannot be adhered to, for whatever reason, the review also puts in place processes to ensure transgender people are informed at the earliest opportunity.
We will be publishing a briefing in the coming weeks that will outline the main conclusions made by the review, and some of the key changes to the PSI. In the interim, I thought it would be helpful to summarise these issues.
Keeping up with the pace of change
The review makes a very clear statement that ‘the treatment of transgender people in courts, probation and in prison services has not kept pace with the development of a more general understanding of the issues surrounding gender in society.’ We are pleased to see it highlight that as a starting presumption, people should be treated in line with the gender that they identify when they come into contact with the CJS.
A flexible approach to gender identity
Prior to the review, people would be allocated to prison establishments or treated according to their gender as recognised by the law. This could mean two things: people would be treated according to their birth gender or they would have to obtain a Gender Recognition Certificate (GRC). Positively, the new PSI recognises that not all transgender people have a GRC and states that ‘a more flexible approach to location within part of the prison or approved premises estate will be applied to transgender offenders who can demonstrate consistent evidence of living in the gender they identify with.’ The PSI has some guidance on this and it will be assessed on a case by case basis.
Early decision making and keeping people informed
The review recognises that anticipation and early intervention often provide the best outcomes for people in contact with the CJS. It therefore says that ‘where possible case conferences on allocation decisions should be held pre-sentence and before any decision to remand in custody, and information used in sentencing recommendations and sentence planning’. We are very supportive of the review’s clear statement that keeping vulnerable people safe outweighs the need for any decision making to take place swiftly.
Creating an advisory group
To ensure the conclusions from the review and the new PSI remain fit for purpose and are being properly implemented, an advisory group on transgender people in custody or subject to community supervision will be established. This will initially run for three years and will include representation from the NHS, clinical experts, youth justice, inspecting and scrutiny bodies and advocacy organisations including those in the voluntary sector.
Developing training and expertise
The review is clear that all NOMS staff should receive training and e-learning as part of their wider equality awareness to ensure they understand the rights and needs of all transgender and non-binary people. Positively, it is clear to highlight that this doesn’t only relate to people who are going through gender reassignment.
Recording and monitoring
One of the key issues ourselves and others raised in responding to the review was that the number of transgender people in contact with the CJS was not routinely recorded by NOMS and the MoJ. We are pleased that this is being rectified, and this information will be collected annually and published in the NOMS Annual Offender Equalities Report.
The role of the voluntary sector
The review explicitly highlights that services provided by community-based transgender support organisations, or other voluntary sector organisations, should be routinely available to all prisoners. Although this is important, we hope that as the operational changes are made, the voluntary sector is able to engage in this process.
Look out for our briefing
If you have any comments please do get in touch with me or leave a comment below, and look out for our more detailed briefing in the coming weeks.
Latest on Twitter
.@hibiscuscharity have launched a report - funded by Clinks - which explores the complex issues faced by Black, minoritised and migrant women in contact with the CJS and the resulting impacts on their mental health.
Read the report here: https://hibiscusinitiatives.org.uk/media/2023/06/rmc-mental-health-report-document.pdf