Transgender prisoners: where should they be housed?

There are just two transgender inmates held in Irish prisons, or 0.04 per cent of the prison population.

Even taking into account the small size of Ireland’s prison population, it’s a tiny number. The equivalent figure for Britain is up to 1.8 per cent while in Thailand it’s 2.6 per cent.

Devising policy for these prisoners is a complex issue that involves balancing the rights of the inmates, their fellow prisoners and prison staff.

But it’s far from the most pressing issue facing the Irish Prison Service, which is also dealing with severe overcrowding and large numbers of severely mentally ill inmates who require urgent psychiatric care.

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Nevertheless, the trans issue has at times dominated discussions about penal policy in recent months thanks to the case of Barbie Kardashian, a transgender woman jailed in March for threatening to torture, rape and murder her mother.

The court heard Kardashian (21), who has been diagnosed with narcissistic personality disorder, continues to “pose a significant threat to those she has made threats towards, as well as to the wider public”.

A recent politically damaging controversy in Scotland, which may have played a role in the resignation of Scottish first minister Nicola Sturgeon, was no doubt to the fore of politicians’ minds

Having legally changed her gender in 2020, Kardashian was sent to Limerick women’s prison, where she has been kept in segregation on E Wing. The wing also houses another trans prisoner and two other women with convictions for offences against children.

Speaking after the sentencing, Taoiseach Leo Varadkar brought further attention to the case when he said he did not believe violent trans women should be housed in female institutions.

Minister for Justice Simon Harris echoed his comments a short time later and announced that the prison service was devising a new policy on housing trans inmates. Earlier this week Limerick Fianna Fáil TD Willie O’Dea said it is inappropriate that transgender women with a history of violence should be housed in women’s prisons.

[ Barbie Kardashian: ‘Chilling, disturbing’ background of defendant ‘driven’ to violence ]

A recent politically damaging controversy in Scotland, which may have played a role in the resignation of Scottish first minister Nicola Sturgeon, was no doubt to the fore of politicians’ minds.

Trans woman Isla Bryson was temporarily housed in a female prison after being convicted of raping two women. Following significant public backlash, she was transferred to a male prison, and Scotland announced a change in policy that restricted the placing of violent trans women offenders in female institutions.

Ireland has no official policy on trans prisoners. However, some guidelines have been introduced in recent years. Staff are expected to treat all prisoners “with dignity and respect”, and this extends to using the correct names and pronouns preferred by trans prisoners, says a spokeswoman. This means referring to a trans female prisoner as “she” if that is her preference, even if they have not legally changed gender.

By far the most difficult aspect of housing trans prisoners is deciding whether they should be kept in a men’s or women’s institution

In 2021 this advice was uploaded to the staff intranet portal, along with additional guidance from the Transgender Equality Network Ireland (Teni).

Regarding healthcare, trans prisoners are entitled to the same range and quality of healthcare services available under the medical card scheme on the outside. This means, in theory at least, prisoners are able to access hormone therapy, psychology services and gender-reassignment surgery.

Under the 2007 prison rules, prisoners cannot be searched by a staff member of the opposite gender, meaning in legal terms trans women must be searched only by female prison officers and only in the presence of female prison officers.

By far the most difficult aspect of housing trans prisoners is deciding whether they should be kept in a men’s or women’s institution. According to the IPS, the question of where a prisoner is initially sent is a matter for the sentencing judge, who specifies the prison on the committal warrant.

This means if a prisoner has legally changed their gender, they are sent to the prison corresponding to that gender.

[ We need to see the manufactured debate on trans rights for what it is: nonsense ]

Once a prisoner reaches prison, however, the IPS has latitude to transfer them if the governor believes it necessary. Factors taken into account in the decision include the prisoner’s “biological gender, legal gender, gender identity, transgender, gender expression, sexual orientation or gender recognition legislation”, says the IPS.

The governor will also consider safety risks to the prisoner and to other inmates. It remains open to the governor to place the prisoner in segregation or to initiate a move to another prison, including a prison intended for the opposite gender.

In practice this has occurred only once, in March 2021, when Minister for Justice Helen McEntee approved the transfer of a trans woman to a male facility.

Typically, trans women prisoners are held in segregation on E Wing in Limerick, where they can spend up to 23 hours a day in their cells due to safety concerns.

“This is hell, and worse than hell actually,” one trans prisoner housed on the wing has told the Inspector of Prisons, according to the 2021 report. She says the approach to trans prisoners is “out of sight, out of mind”.

The report notes some countries have opted to build prisons specifically to house trans inmates, a remote possibility in Ireland given the tiny numbers involved

One of the women described the regime as “mental torture”. As a result, the inspector concluded the IPS was not in compliance with the Yogyakarta Principles, a set of international guidelines that state protective measures for trans prisoners should “involve no greater restriction of their rights than is experienced by the general prison population”.

The new policy being devised by the IPS will be published in the near future, says Harris. The IPS says the policy will take account of “evolving trends internationally and fact-finding in relation to best practice in other jurisdictions.”

The IPS declined to release details regarding the draft policy following a Freedom of Information request. However, it did release the documents from other jurisdictions that are being taken into consideration.

These include a 2021 UK High Court case stating it is lawful to hold trans women in female prisons, advice from Teni and guidelines from the American Medical Association. Also under consideration is policy introduced by the UK home office earlier this year that imposes strict rules banning the housing of three categories of trans women with other women: those convicted of violent offences, those convicted of sexual offences and trans women with male genitalia.

[ Taoiseach calls for ‘respectful’ debate on trans issues ]

IPS management is also considering a document from the UN Office on Drugs and Crime which recommends a more liberal approach, including consulting trans prisoners on housing decisions and giving them a choice as to the gender of staff conducting body searches.

“Segregation and/or protective custody should be avoided at all costs, unless serious and irremediable safety and security issues limit housing options,” it states.

The report also notes some countries have opted to build prisons specifically to house trans inmates, a remote possibility in Ireland given the tiny numbers involved.

An IPS spokeswoman has declined to discuss what direction the forthcoming policy would take. However, a senior prison source says it is likely to resemble the UK policy, but with some additional discretion built in “to allow wriggle room for edge cases”.

The purpose, they say, is to have a uniform policy “across the board” and to head off future politically embarrassing cases such as that of Isla Bryson.