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IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT



Mr Jason Elliott (instructed by Chris Noon Chivers Solicitors Durham) for the Claimant Mr Oliver Sanders (instructed by The Treasury Solicitor) for the Defendant Hearing dates: 28th October 2013 ____________________

His Honour Judge Jeremy Richardson QC:

Introduction

(1) Introduction

(2) The Gender Recognition Act 2004

(3) The Factual Backdrop

(4) Prison Policy: The Care and Management of Transsexual Prisoners (PS1 07/2011)

(5) Facts: HMP Frankland

(6) Claimant's Argument

(7) Defendant's Argument

(8) Has there been a breach of policy?

(9) Departure from policy

(10) Discrimination under the Equality Act 2010

(11) Conclusion

The Gender Recognition Act 2004

The Factual Backdrop

"It remains the fact, on your own admissions, you were present at most of the significant events in the catalogue of destruction of your wife and there is clear evidence that for a long time you were telling people a whole series of false stories about what happened to her and incorporating into what you said quite false allegation about her. It may be that your account to the police contained a few more hints at the truth than did the accounts of some other people. On the other hand, it also displayed a clear tendency to lie."

It is also clear from the judge's sentencing remarks the claimant knew what was happening to his wife and his role in her death meant he assisted them to evade justice. It is clear the claimant, at least in the past, was capable of serious dishonesty by telling lies.

Prison Policy: The Care and Management of Transsexual Prisoners (PSI 07/2011)

"3.1 When a prisoner proposes to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex, the prisoner is considered to have the protected characteristic of gender reassignment for the purposes of the Equality Act 2010 and must not be discriminated against or harassed because of this.

3.2 An establishment must permit prisoners who consider themselves transsexual and wish to begin gender reassignment to live permanently in their acquired gender." (The paragraph goes on to deal with those under the age of 18  not relevant to this case)

"B5 Transsexual people, particularly those who have not undergone surgery or extended hormone therapy, may use various items to assist with their presentation in their acquired gender. These can range from sophisticated prostheses to padded bras. Regardless of their level of sophistication, access to them can only be restricted in exceptional circumstances. (Incentives and Earned Privileges) is not a justifiable reason for restricting access.

B6 These items may only be prohibited when it can be demonstrated that they present a security risk which cannot be reasonably mitigated. The test that is applied to these items is the same as that applied to other items in the prison in which the prisoner is held. Any restriction on these items could be the subject of judicial review. If a prison decides to apply such restrictions, they must be able to provide detailed and reasonable justification for doing so."

Facts: HMP Frankland

(1) No access to hormone treatment.

(2) No access to wigs.

(3) No access to certain prosthetic devices (designed to aid the intimate appearance of a woman  it is unnecessary to be more graphic than that).

(4) No hair removal products.

(5) No separate changing facilities for the gym and no privacy screens.

(6) An expectation that male urinals would be used for drug testing purposes.

(7) Items required for living in the female role ordered from certain specialist suppliers were routinely returned at reception.

(1) There are regular meetings between staff and transgender prisoners (Gay, Bisexual and Trans-sexual Forum) where issues are discussed and plainly it is used as a means of resolving complaints. (The Forum) [I have read several of the minutes of these meetings which I forbear to recite but have well in mind when deciding this case]

(2) Specific events and activities are organised to aid support for transgender prisoners.

(3) The claimant (in common with other like prisoners) has a card on her cell door to make it clear to staff the name by which she is to be known. The Governor acknowledges that there have been a small number of breaches of this.

(4) The claimant may access and wear female clothing and make-up subject to the demand it is appropriate and the make-up is kept "within reason" (as applied to female prisoners in the prison estate).

(5) It is denied she is required to present as a man.

(6) Whilst away form her residential wing the claimant is allowed to wear female underwear, a bra, minimal make-up, female trousers and other unisex clothing that is found on the "Girl Gear" list. Overtly female clothing is not permitted when away from the residential wing. It is averred there would be an enhanced risk of assault or sexual violence from other prisoners elsewhere in the prison where less enlightened prisoners would react adversely.

(7) The claimant does not leave her residential wing as she has a position of a cleaner on the wing. Additionally, she does not wear make-up as a matter of choice (even though it would be allowed). Nor does she wear overtly female clothing.

(1) The system whereby prisoners may purchase items incentivises positive behaviour and responsibility.

(2) There is a prison policy to cover this: Prisoner Retail PSI 23/2013.

(3) Items may be purchased via the prison canteen each week at HMP Frankland. This includes about 600 items such as tobacco, toiletries and groceries. It does not include make-up or clothing. It is inevitable that most of the items on the list are either gender-neutral or male items (after all it is a male prison). There is a system for consultation with prisoners about the content of the canteen list via "canteen reps" (nominated prisoners).

(4) The additional way to obtain items is via the Facilities List on a weekly basis. This includes items supplied by companies via their catalogues. This includes female items for the transgender prison population and it may be accessed regardless of the prisoner's enhanced privilege status (unlike male prisoners). On this list are 13 suppliers offering a range of women's clothing. Special arrangements are in place to secure the supply of larger sizes.

(5) One problem relates to the supplier called Transformation which specialises in those in the transitional stage of gender reassignment. Unfortunately it only offers an online catalogue and prisoners are not permitted to access the internet for obvious security reasons.

(6) Make-up may be obtained via the Special Cosmetics Order Form.

Prosthetic Breast and Vaginas

To provide these would heighten the risk of sexual abuse and assault by other prisoners. Additionally, it would heighten the risk of a prisoner concealing items which might compromise the security of the prison. To provide the items and maintain security would demand more rigorous and invasive searches affecting the dignity of transgender prisoners.

Tights

Tights are prohibited at HMP Frankland as they may be used to provide a ligature, climbing aid and/or as a sieve for brewing. They can be easily concealed and it is impossible to adequately monitor their use.

Wigs

The provision of wigs produces a security risk as they provide a very convenient and highly effective disguise if misused in the prison environment. Their effective use in the event of an escape is obvious.

Claimant's Argument

(1) There are real difficulties in obtaining items from the "Girl Gear" list.

(2) Purchased goods are returned to the supplier.

(3) The claimant is denied access to specialist transgender suppliers.

(4) Too many normal items are declined on unjustified security grounds.

Defendant's Argument

Has there been a breach of policy?

Departure from policy

Discrimination under the Equality Act 2010

(1) Has the claimant been treated less favourably by the Governor than he would treat others in the exercise of his public function?

(2) If he has so treated the claimant, was this due to the claimant's gender reassignment?

Conclusion