Women prisoners who call transgender inmates by the wrong pronoun could face extra time in jail under equality rules, says a justice minister.
Female inmates who deliberately call a transgender woman “he” or “him” could be punished under rules barring “threatening, abusive or insulting words or behaviour”.
The penalties will be decided by an independent adjudicator, a visiting judge, who has the power to impose additional days if they feel the abuse merits such a punishment.
The disclosure comes amid a growing debate over the policy of holding male-to-female transgender prisoners in women’s jails.
This summer, the High Court rejected a legal challenge to prevent transgender inmates with convictions for sexual or violent offences against women being imprisoned alongside other women.
In 2019, there were 34 transgender women who were still legally male detained at the 12 women’s prisons in England and Wales.
Asked about the policy on the words allowed for transgender inmates, Lord Wolfson, the justice minister, said: “Incidents where a prisoner uses incorrect pronouns for another prisoner will be considered on a case-by-case basis, in line with the prisoner discipline procedures policy and the prison rules.
“Prisoners may sometimes make an honest mistake in relation to pronouns and disciplinary action would not usually be appropriate in those circumstances.
“However, if an officer deems it appropriate to place a prisoner on report, the rule against ‘using threatening, abusive or insulting words or behaviour’ – Prison Rule 51(20) – may apply. The adjudicator will weigh each incident on its own merits.
“The policy stipulates that an offence motivated by another person’s protected characteristic(s) under the Equality Act 2010 is an aggravating factor and may merit referral to an Independent Adjudicator.”
The most severe punishment available
Official guidelines state that disciplinary cases are normally heard by a prison governor, and are only referred to an Independent Adjudicator where there is the possibility of days being added on to the sentence – which is the most severe punishment available.
Under Prison Service policy, any prisoner who has legally changed their gender, and been granted a Gender Recognition Certificate (GRC) to prove it, will automatically be sent to a jail appropriate to their new gender.
A prisoner who identifies as the opposite sex but does not have a GRC will initially go to a prison for their old, legally-recognised gender, but may later move after an assessment of their case.
Lord Wolfson added: “The Ministry of Justice and Her Majesty’s Prison and Probation Service are committed to advancing equality, eliminating discrimination, harassment and victimisation.
“As part of this, we ensure that all prisoners are treated fairly and in a way that respects their rights, and encourage them to act in a way that is respectful and considerate of others.”