4 September 2009

Transexual wins prison transfer case...

Just a brief post today, flinging us back towards the subject of prison policy and this case, reported in the Telegraph and on the BBC, involving the illusive "A". It substance, as both of these articles in review make clear, A is a life prisoner who has been recognised as female under the Gender Recognition Act of 2004.

For those of you who are unfamiliar with the legislation – I imagine most of you – if you are over 18, you can make an application to a Gender Recognition Panel constituted of doctors, psychologist and, as ever, a few leechy lawyers. The Panel “must”, according to the law, grant the application for a gender recognition certificate, if it is satisfied of the following. Firstly, that the applicant (a) has or has had gender dysphoria (b) that the applicant has “lived in the acquired gender throughout the period of two years ending with the date on which the application is made”, (c) intends to “live in the acquired gender until death” and (d) can produce two reports. One from either a registered medical practitioner “practicing in the field of gender dysphoria” or a psychologist with an interest in the same - and another from a common-or garden registered medical practitioner outlining the detail of the steps taken thus far to alter particular sexual characteristics and – I’m generalising here – basically confirm the diagnosis of gender dysphoria.

Much to do then, to acquire one of these gender recognition certificates, and a long roll of years intervening. Section 9(1) of the 2004 Act holds that

“Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).”

According to the reports, A acquired this certificate in 2006. Unfortunately, thus far I’ve found it a bit difficult to get hold of the actual text of David Elvin QC’s judgement in London’s High Court. Even then, I’ve never been a dab hand with administrative law and review, so on the law, it’d astound me if I had anything interesting or controversial to submit. That said, however, it seems to me only proper, in the spirit of the quoted section of the 2004 Act, and its insistence that for (almost) all purposes the certificate holder is the acquired gender, the prison estate ought equally to recognise that (examples of other exclusions include, in section 19 of the Act, certain sporting activities) . From the Telegraph report, the ministry of justice’ main objection seems to be on the question of cost. I suspect the causal root of this may be A’s conviction for attempted rape of a “female shop assistant” – but as I say, I've not read the parties' submissions, so can't be sure why the “Ministry of Justice warned it will cost taxpayers an extra £80,000 a year because she will have to be kept in segregation”.

For myself, I think that if we are willing to accept the idea of gender dysphoria, if we are willing to enact the public recognition of individual’s gender transformations, it is only proper that this should be reflected in the manner people are incarcerated, and in what cohort of the prison estate they are billeted - if, that is, we are to insist on a gender-segregated system. I'll be interested to read the full judgement when I manage to find it. In particular, because it seems as if Elvin's judgement was under article 8 of the European Convention - privacy and family life - as opposed to some of the other sections which might have been relevant. While an eye to the detail is certainly important, casting a quick squint over the superficial surface characters, in principled terms, it seems as if Judge Elvin made the right decision.

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