News that a trans woman, Tara Hudson, has been imprisoned within a mens’ prison (Horfield, in Bristol) has found its way onto the national media. Over 110,000 people have signed a petition protesting the decision. Reporting within the papers has had the usual degrees of inaccuracy when it comes to understanding gender recognition. But her case has now been raised in Parliament twice in two days, and will undoubtably be raised again. Demonstrations are now planned in Bristol and outside the Ministry of Justice.
Rumours have washed across social media about her being moved to a womens’ prison, but these have remained unsubstantiated. The Ministry of Justice remains defiant in its bald statement that a gender recognition certificate is required.
However this is at odds with both case law from 2009 (when the UK Government failed to defend that it was valid to incarcerate a trans woman in a mens’ prison) and guidelines issued in 2011 by the National Offender Management Service (NOMS). The judge in 2009 deemed the Government’s decision to be cruel and unusual punishment, and the harassment Tara is reporting confirms this.
There has been an understanding since 2009 that a trans person will generally be accommodated within appropriately gendered prisons, irrespective of whether they have a gender recognition certificate or not. This latest story indicates that officials can override this understanding, case law and guidelines at will. As such it should strike fear into every single trans person who does not have a gender recognition certificate, for whatever reason. Gone are the guarantees that you will be kept as safe as you can be. Instead someone in NOMS seems to have determined that it’s perfectly acceptable for a trans woman to receive huge amounts of sexual abuse from other prisoners.
We tend to operate on the basis that only criminals get imprisoned in our society, yet miscarriages of justice do occur, and the assumption is predicated on a reasonable government.
I’m not aware of what documentation you need to have with you when you happen to be arrested or sentenced. Be aware that people are placed into prisons on remand, before trial. But I don’t carry my birth certificate around with me, nor my passport. I don’t know many who do. If I was arrested I, like every other trans person, would essentially have to rely on the understanding of others, and whether they deem me “acceptable enough” in order to make the decision on where I should be placed. I imagine that any possession of a gender recognition certificate becomes theoretical at that point.
And this throws us back to gender recognition. The requirement is that the trans person pulls together a dossier of evidence that is convincing enough for a panel that they will never meet. If the panel is not convinced, they reject the application, hopefully with some guidance. And the trans person has to pay for the privilege, not just for the application itself but for any doctors who need to supply evidence as well as any other legal documents required. This is being branded a “trans tax” – a charge not for being to do something, like drive or travel, but be someone. The concentration on the charge is one thing – but the core abuse is having to throw yourself entirely on the mercy of other people. That’s what underpins the call for self-determination.
In the Commons Select Committee yesterday afternoon, both Maria Miller and Jess Phillips asked questions about what does it really mean, in clinical terms, to “live like a woman” (or man). Of course, there’s no answer, but the NHS man (Will Huxter) said he’d consult with medics and dodged the question. Jane Ellison, Under Secretary of State for Health, was challenged about the need for trans people to tick boxes before accessing treatment. It became apparent that no-one had ever talked about trans in those terms to her. Again, the process is one of convincing someone that you are worthy somehow of treatment.
Now, being trans is not completely analogous, but imagine having to convince your doctor that you really have broken your arm and having to provide x-rays, prove the amount of pain you’re in when you move it, and demonstrate your new found inability to draw, not just once but over a period of time. The idea that doctors can know your identity better than you do yourself was also raised in committee, and was placed in the “firmly ludicrous” drawer. Yet that’s what you have to do.
All around trans people are being demanded to verify themselves – to medics, to the state and now to prison authorities. All around, there is a risk that any one of the multitude of bodies may arbitrarily decide that, nope, they don’t recognise you as you understand yourself, and your rights evaporate.
At its roots, this “prove yourself” view is underpinned and “informed” by opinions such as those voiced recently (and not so recently) by Germaine Greer – that trans people are fundamentally frauds. In my view free speech carries with it responsibilities, especially when communicating through any form of media – including the responsibility to be informed rather than simply opinionated, and the ability to face the consequences of what you say. The consequences of the “trans people are fraud” theme are, quite simply, that trans people are denied rights and placed into danger. It’s not just “an opinion”, it has real and harmful consequences.
What we are starting to see in a newly vociferous set of communities is the demand for that systematic and systemised abuse to end. We may not yet understand the best way to achieve that, or be able to articulate a case with absolute clarity, but trans people are moving out from being afraid, and are becoming angry and demanding change. About time.