R (on the application of AB) v Secretary of State for Justice and another [2009] EWHC 2220 (Admin), [2009] All ER (D) 28 (Sep)
R (on the application of AB) v Secretary of State for Justice and another [2009] EWHC 2220 (Admin), [2009] All ER (D) 28 (Sep) Queen’s Bench Division, Administrative Court (London), David Elvin QC (sitting as a deputy judge of the High Court), 4 Sep 2009
The decision not to transfer a pre-operative transgender woman to a female prison has been held to breach her rights under Art 8 of the European Convention on Human Rights (the Convention).
Phillippa Kaufmann (instructed by Scott-Moncrieff, Harbour and Sinclair) for the claimant. Oliver Sanders (instructed by the Treasury Solicitor) for the defendants.
The claimant, aged 27, was a pre-operative transgender woman. She was sentenced to an automatic “two strikes” life sentence for offences, committed while a man, of manslaughter and attempted rape. She was being held as a category B post-tariff life sentence prisoner in a male prison. For safety reasons she was segregated from the ordinary male offender population.
Gender recognition
The claimant had been born a male but had begun a process of changing to, and being recognised as, a female.
According to s 9 of the Gender Recognition Act 2004 (GRA 2004), where a full gender recognition certificate had been issued to a person by a gender recognition panel, that person’s gender became the acquired gender. In the case of the claimant, a panel had been satisfied that the claimant had lived in the role as a woman for the requisite two-year period and had awarded her a certificate.
The claimant was seeking gender reassignment surgery; however, the gender identity clinic treating her would not approve her gender reassignment surgery until she had spent a period living “in role” as a woman in a female prison.
Application
The claimant applied on several occasions to the defendant secretary of state for justice for transfer to a general female estate (not segregated). The secretary of state refused the transfer. The reasons given were, inter alia, the risk that the claimant posed to women given that she still possessed male genitalia, and the potential cost of segregation. The claimant sought judicial review of that refusal.
David Elvin QC:
The requirement under s 9 that a person was “for all purposes” of the acquired gender gave rise to difficulties in cases such as the instant where the person with acquired gender still retained physiological aspects of the former gender—in the claimant’s case, male genitalia.
The defendant contended that s 9 did not require the Prison Service to disregard all the consequences of the claimant’s physiology, nor the implications which they might have for the proper running or discipline of the prison estate.
That was a difficult line to draw since if it were taken too far, it could undermine the purpose of the provisions to prove a comprehensive recognition of acquired gender. On any view, they would not justify regarding the claimant as anything other than a woman except to the extent strictly necessitated by the specific relevance of the claimant’s pre-operative physical state to the functioning of the prison.
Presumption
Nonetheless, his lordship was prepared to hold that s 9 did not require the law to presume that the claimant had physical characteristics other than those she actually possessed. It was proper for the secretary of state and the prison service to have regard to them but to the limited extent that they had a bearing on their responsibilities to other prisoners.
However, to the extent that the issue impinged on matters of external appearance, such as clothes and cosmetics, the issues fell to be considered as applying to a woman held in the male prison and it was clear that far greater restrictions were imposed on the claimant than would be the case if she were held in the female estate. Similar restrictions would not apply in the rare case of a biological woman held in a male prison.
The decision to retain the claimant in the male prison barred her ability to qualify for surgery which interfered with her personal autonomy in a manner which went beyond that which imprisonment was intended to do. His lordship concluded that the interference with the claimant’s autonomy was a significant and a personal one.
It went to the heart of her identity, it appeared to be closely related to her offending behaviour, and had been acknowledged by the defendant in recognising that the claimant should be entitled to proceed with the process of gender reassignment under GRA 2004.
Article 8 was therefore engaged, not merely minimally, and the decision to retain the claimant in a male prison interfered with her Art 8 rights. It followed that it was for the defendant to satisfy the requirements of Art 8(2) and to justify as proportionate the interference with the claimant’s rights under Art 8.
While the considerations relied on by the secretary of state, in the instant case, might serve a legitimate aim, the decision made was not in accordance with law. The secretary of state had failed to consider certain relevant issues such as the effect of continued detention of the claimant in a male prison.
Transfer
Preventing a transfer was likely to frustrate the claimant and lead to an increase in her risk profile. There was no evidence that the consequence of the frustration of the claimant’s progress and its possible effects on risk and the cost of keeping her within a male prison had been taken into account by the secretary of state.
The decision of the secretary of state to continue to detain the claimant in a male prison was in breach of Art 8.
The application would therefore be allowed.
