British Judge Orders Prison Transfer for Transsexual Inmate

In a case of first impression, Deputy High Court Judge David Elvin of the High Court of Justice in London ruled on September 4 that prison officials must transfer a transsexual inmate from a men’s prison to a women’s prison so that she can qualify for sex reassignment surgery. The ruling involved both the interpretation of the United Kingdom’s Gender Recognition Act of 2004, and of the European Convention on Human Rights’ guarantee of respect for private life. The Queen (on the Application of AB) v. Secretary of State for Justice, [2009] EWHC 2220 (Admin) (Sept. 4, 2009).

Judge Elvin described the plaintiff, identified as A.B. in the opinion, as "a 27-year-old pre-operative transgender woman," who was convicted of manslaughter and attempted rape and is serving an "automatic ‘two strikes’ life sentence," although it appears from the opinion that she might be eligible for parole at some time in the future. She was sentenced on August 18, 2003, and sent to a men’s prison. At the time she was sentenced, she had recently begun hormone treatment to begin her gender transition.

The opinion relates that A.B., born male, was aware of "the issue of her gender" from an early age, but it was not until after she had killed her male partner under provocation (he was abusive to her) that she was diagnosed with gender dysphoria, the prerequisite for beginning the transitioning process.

By the time she was imprisoned, her appearance was becoming feminized. Under an agreement with prison officials, she was guaranteed a single cell, and is allowed to dress as a woman in her cell, but she may not wear feminine garb when out of her cell. Her transition progressed sufficiently that she was able to receive a certification under the Gender Recognition Act that she is now legally a woman. The Act, passed in response to a ruling by the European Court of Human Rights, does not require surgical alteration in order to achieve gender recognition.

Having been denied parole because the board decided that the risk to others of releasing her remained too high, her only chance to complete her gender transition surgically depends on being able to do so within the prison system. There is no absolute ban on such surgery, but the medical authorities agree that living full-time in the desired gender is a necessary prerequisite to obtaining approval for such a procedure. Because of the limitations placed upon her in the men’s prison, she cannot achieve this prerequisite while housed there, and so she requested a transfer to the women’s prison.

The prison authorities denied the transfer, contending that the extra expenses necessary to accommodate her in a women’s prison, where she would have to live in segregation for some undetermined period of time in light of her criminal record of attempted rape of a woman, would be prohibitive. They suggested that several extra corrections officers would need to be hired and specially trained to look after her until such time as it was deemed appropriate to allow her to live in general population in a women’s prison.

For Judge Elvin, the issue under the Gender Recognition Act and the European Convention on Human Rights was clear-cut, although in the custom of English judges he took many pages of text with extensive quotations from prior decisions to get to his conclusion.

The Act provides that upon a certification of gender, "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)." Thus, "for all purposes," A.B. is now a woman, and Judge Elvin concludes that no woman would be held in a men’s prison under the conditions that are now applied to A.B.

Furthermore, the European Court on Human Rights has ruled that gender identity is protected under the "respect for private life" commanded by Article 8 of the Convention. In the Goodwin case in 2002, the European Court of Human Rights held that the U.K. was in violation of Article 8 when it refused to recognize the gender identity of the plaintiff, a male-to-female transsexual who wished to be married to her long-time male partner. The resulting British legislation provides a mechanism for determining gender, and has made it possible for British transsexuals to marry, provided the marriage would not be a same-sex marriage in light of their legal sex. The U.K. provides civil partnerships carrying all the legal rights of marriage for same-sex partners.

News reports indicated that prison authorities complied with the court’s order within days of it being issued, so it did not appear that the government would appeal it. This means that A.B. should be able to fulfil the requirement of living full-time as a woman in order to satisfy the medical authorities that she should be able to get sex reassignment surgery.

The case presents a striking contrast to the United States, where there is no national standard for gender identity recognition, the states vary widely in the standards they maintain, and insurance coverage for sex reassignment surgery – which is covered by the National Health Service in the U.K. – is generally not available, either in the private sector from insurance companies or under public programs such as Medicaid. Perhaps most significantly, as a practical matter, in the United States many jurisdictions insist that they will not recognize a transsexual’s preferred gender identity unless there has been surgical alteration, whereas the gender recognition process in the U.K., recognizing that gender identity is not about genitals as such, takes a more liberal approach.

Comments

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