Submission to the Irish Prison Service Prison Rules Review Consultation

29th September 2021

Women’s Space Ireland provides a space to speak about women’s sex-based rights. Women’s Space Ireland supports the rights of all individuals to live lives of dignity, free from discrimination and harassment.

Discrimination continues to be an issue for women and girls in Ireland. It can be seen in numerous ways from women's lack of representation in political life to being by far the greater number of victims of domestic and sexual violence. Understanding that violence and discrimination against women and girls occurs as a result of our biological sex is crucial to addressing these issues. This is why retaining sex as a protected category, rather than gender identity, is essential in order to ensure women's safety.

Women and girls are entitled to retain the right to single-sex spaces; privacy, safety and fairness in the provision of toilet and changing facilities; prison and hospital ward spaces, sports, awards, lesbian social outlets and political representation.

Prison Rules Review

Women’s Space Ireland (WSI) welcomes the opportunity to make a submission to the Irish Prison Service (IPS) Prison Rules Review to highlight the need for the protection of women prisoners’ single-sex spaces, privacy, safety and other needs.

Public Sector Equality and Human Rights Duty

WSI submits that, as part of the Public Sector Equality and Human Rights Duty (Section 42, Irish Human Rights and Equality Act, 2014) all stages of the the Prison Rules Review, including at Report, Working Group and in submissions to the Secretary General and Minister Working Group stages, should have regard to the following:

a) The protection of women prisoners and women prison officers from sexual and other harassment; (Section 11, Equal Status Acts 2000 - 2018);

b) The protections in the Equal Status Acts in relation to the provision of accommodation to persons of one gender where embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender.

Under the Equal Status Act 2000 the “gender ground” is clearly defined in relation to biological sex:

Section 3 (2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(a) that one is male and the other is female (the “gender ground”),

c) Differences in treatment between persons on the gender and other grounds are allowed and are not discriminatory, in the case of the following (Part II, S5, ESA):

i) Differences in the treatment of persons on the gender ground where embarrassment or infringement of privacy can reasonably be expected to result from the presence of another person of another gender (II,5(g) ESA)

ii) Differences in the treatment of persons in a category of persons in respect of services that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests (II, 5 (h) ESA)

iii) Differences, not otherwise specifically provided for in this section, in the treatment of persons in respect of the disposal of goods, or the provision of a service, which can reasonably be regarded as goods or a service suitable only to the needs of certain persons (II, 5(l) ESA)

d) That preferential treatment of the taking of positive measures which are bona fide intended to …cater for the special needs of persons, or a category of persons, who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons [ who do not have those special needs, or ] (Part II, S14(b)ii ESA)

e) That in order to meet the Public Sector Duty, the relevant statistics in relation to the numbers of female and transgender prisoners, including the figures relating to those who hold and do not hold a gender recognition certificate be recorded.

Women’s Space Ireland urges the Working Group to take a balanced approach which, while considering the safety and other needs of transgender prisoners, must ensure that any changes to the Prison Rules do not negatively impact on the safety and other needs of women in prisons, including women prisoners and women Prison Officers and officials. The relevant exemptions in the Equal Status Acts allow for a measured approach which takes into account the particular needs and vulnerabilities of women prisoners.

Women prisoners

Women prisoner characteristics

Both the number and proportion of women prisoners committed annually to Irish prisons has been reducing over the last 5 years. In 2019 women represented just under 12% (678) of total committals, down from 21% (2,979) in 2015 (IPS statistics). While the move towards non-custodial approaches to women’s patterns of offending is in line with international best practice and the UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (“the Bangkok Rules”), 2010, there still remain issues of overcrowding in the women’s prisons in Ireland (Limerick and the Dóchas Centre in Dublin).

However, WSI welcomes this reduction in the number of women prisoners being committed as it is recognised internationally that women offenders are mostly committed for non-violent offences including bail offences related to caring and family responsibilities, come from a background of social disadvantage and poverty, have mental health problems and a high proportion of women in prison have children.

Additionally the majority of women in prison will have suffered domestic abuse, a conservative estimate is over 60% of women prisoners having been subject to partner abuse, (1) over 30% of women prisoners in England and Wales report a history of sexual abuse and recent research from Glasgow University found that 80% of women prisoners had a history of significant head injury, with sustained domestic abuse the most likely cause. A first head injury before the age of 15 was reported by 69% of the women and 40% had an associated disability. (2)

This history of trauma and the particular vulnerabilities of these women in relation to their experiences of mainly male-partner perpetrated violence must shape any policy and rule changes in relation to their prison conditions, especially with respect to their rights to privacy, dignity and safety.

Separation of female and male prisoners

The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules) set out that

‘Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women, the whole of the premises allocated to women shall be entirely separate’. (3)

WSI recommends that Rule 52 of the Prison Rules adheres more closely to the Mandela Rules so that the section (1) - “Unless otherwise authorised by the Minister, male and female prisoners shall be accommodated in separate areas to which prisoners of the opposite gender do not normally have access”, and be strengthened to ensure that the premises allocated to women prisoners be entirely separate. Women in Limerick Prison have raised privacy concerns in relation to an exercise area overlooked by male prisoners.

United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (UN Bangkok Rules)

The Bangkok Rules recognise that existing rules for prisoners do not take adequate account of the particular experiences of women prisoners indicating that there are important differences between women and men as prisoners to be considered in the drafting of prison rules. WSI recommend the full incorporation of the Bangkok Rules into the IPS Prison Rules. There are currently very few references to the particular needs of women prisoners in the Prison Rules and this requires urgent updating.

The Basic Principle of the Bangkok Rules states in Rule 1:

“In order for the principle of non-discrimination embodied in rule 6 of the Standard Minimum Rules for the Treatment of Prisoners to be put into practice, account shall be taken of the distinctive needs of women prisoners in the application of the Rules. Providing for such needs in order to accomplish substantial gender equality shall not be regarded as discriminatory” (emphasis ours).

Examples of particular rules to be incorporated:

(Bangkok) Rule 5 - In relation to the provision of period products for women the Bangkok rules provide that these should be “available to women under conditions in which they do not need to be embarrassed asking for them”. WSI welcomes the commitment of the IPS to provide a wide range of period products free and recommends that this policy be regulated in the revised Prison Rules and information be included on how these products can be accessed in the information material given to women prisoners on committal.

Rule 12 - Given the history of trauma and partner abuse experienced by a majority of women prisoners, individualized, gender-sensitive, trauma-informed and comprehensive mental health care and rehabilitation programmes shall be made available for women prisoners with mental health-care needs in prison or in non-custodial settings.

Rule 13 - Prison staff shall be made aware of times when women may feel particular distress, so as to be sensitive to their situation and ensure that the women are provided appropriate support.

Rule 17 - Women should be provided with education and information about preventive healthcare, including information on female specific health conditions.

Rule 26 - Access to and contact with family: As there are only two committal prisons locations for women in Ireland and no open prison facilities for women, greater support should be given to women to maintain family connections and relationships, for example, given the ubiquity of video conferencing during the Covid pandemic, IPS Prison Rules should specify greater adherence to this Bangkok rule through the encouragement of and provision of greater facilities for family contact using video conferencing.

Rule 48 - Provision of food should include regard for the needs of women who are pregnant or breastfeeding.

Transgender prisoners in Ireland

The Irish Prison Service is currently developing a national policy for the safe custody of transgender women and men. Consultation is currently ongoing with relevant stakeholders as well as other jurisdictions. (4)

WSI submits that this consulation process must include the views of women prisoners and women Prison Officers in relation to any changes this may have on their living and working conditions in prisons.

The WSI is concerned that the Yogyakarta Principles and the later YP+10 will be referred as a source for any changes to Prison Rules and policies in relation to transgender prisoners that will have an impact on women prisoners. These principles were recently referenced by the Office of the Inspector of Prisons Covid-19 Thematic Inspection of Limerick Prison. However they have no international legal standing, are not binding on the State and are not endorsed by any UN body. One of the original signatories of the Yogyakarta Principles, Robert Wintermute, Professor of Human Rights Law at King’s College London has since expressed regret that women’s rights were not considered during the meeting which established the principles and that the authors of the principles “failed to consider” that transwomen who still have male genitals would seek to access female-only spaces. Wintermute has said that “a key factor in my change of opinion has been listening to women” (5).

The Women’s Human Rights Campaign is an international organisation which exists to promote the sex-based rights of women as set out in the Convention on the Elimination of all Forms of Discrimination against Women adopted by the United Nations General Assembly on 18 December 1979 (CEDAW), further developed in the CEDAW Committee General Recommendations, and adopted, inter alia, in the United Nations Declaration on the Elimination of Violence against Women 1993 (UNDEVW). Ireland is a signatory to and is bound by the UN CEDAW. The WHRC regards the ultimate aim of the Yogyakarta Principles as

“the complete elimination of all sex and gender markers from the law. In the meantime, those who lobby for the Principles advocate for the inclusion of ‘gender identity’ within legal and social definitions of sex. This would have significant negative implications for women’s rights……” (6)

The housing of male-bodied people in women’s prisons introduces a level of unacceptable risk to women prisoners. For example, although prisons in England and Wales have a risk assessment policy in relation to committing male-bodied trans prisoners to women’s prisons, a failure to apply it correctly resulted in a male-bodied sexual offender, described by a sentencing judge as “a predator and highly manipulative” and as a “significant risk of serious harm to children, to women and the public” being housed in a women’s prison and sexually assaulted female prisoners while there. (7)

While the UK Ministry of Justice apologised for the mistake, the women who were sexually assaulted would never have been assaulted had there been a policy of housing male-bodied trans people and women prisoners in separate accommodation.

WSI understands that on arrival in prison after sentencing, prisoners are brought to the reception/committal unit of the prison where there is an opportunity to provide details as part of the committal interview process.

“The assessment of the prisoner’s needs may require a Prison Governor to consider the biological gender, legal gender, gender identity, transgender, gender expression, sexual orientation or gender recognition legislation.”

and that the Governor may also make a recommendation on the appropriate placement of the person within the prison system. (8)

WSI acknowledges that the IPS recognises the fact that

"The Prison Service is acutely aware of the fact that women prisoners are a vulnerable group within the prison system and is aware that the supports for female offenders and their rehabilitative needs are very different to male offenders." (9)

This is the rationale for our recommendation that Prison Rules with respect to the housing of male-bodied people who identify as transgender, whether or not they are issued with a Gender Recognition Certificate, be amended to ensure that they be accommodated in separate prison facilities from those accommodating women prisoners. There are good reasons why women prisoners and men prisoners are kept in separate areas and we believe the same principles should apply in relation to male-bodied trans prisoners whether or not they have been issued with a Gender Recognition Certificate. Frances Crook, the Chief Executive of the Howard League for Penal Reform has said,

“I am asking [prison managers] to err on the side of caution, because there is emerging evidence that certain men are jumping on the trans bandwagon to access, and harm, very vulnerable women in prison” (10).

Robert Purcell, Chair of the Law Society Criminal Law Committee has also drawn attention to “the potential safety issue for women inmates housed alongside a male-bodied prisoner” as reported in the Law Society of Ireland Gazette (11) regarding the case of a male bodied prisoner convicted of ten counts of sexual assault and one count of cruelty against a child who was sentenced to serve his sentence in a women’s prison.

WSI, along with a growing list of organisations which prioritise women’s needs and rights believe that the housing of male-bodied prisoners alongside female prisoners is wrong and a violation of the Article 3 rights of women in prison not to be subjected to inhuman or degrading treatment or punishment. We also believe that the histories and experiences particular to women prisoners, as opposed to male prisoners, gives scope under the Equality Acts to justify “differences in the treatment of persons in a category of persons in respect of services that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests," (II, 5 (h) ESA) in relation to women prisoners.

Statistics

It's essential for formulation of good public policy with regard to our prison system that accurate statistics are kept on the number of each sex imprisoned. At the moment we understand that men with Gender Recognition Certificates (GRCs) who are sent to a women's prison are counted as women in the statistics gathered. According to the Irish Prison Service:

“So if the Judge, taking all the information available, sentences a person to the male prison they will be counted in the male prisoners statistics, equally if the Judge sentences a person to the female prison, they would be included in our female prisoner statistics.” (August 2019).

The number of men with GRCs in our prison system are low but nonetheless this problem clearly has the potential to escalate, as the experience of the UK indicates where one in 50 male prisoners in England and Wales identify as trans. (12) Counting men as “women” will also corrupt the statistics on the types of crimes committed by each sex and will lead to a distortion of public policy making if such statistics are to be believed.

1 https://www.womeninprison.org.uk/media/downloads/HM-Government-DA-consultation.pdf

2 https://www.theguardian.com/society/2021/may/13/four-in-five-female-prisoners-in-scotland-found-to-have-history-of-head-injury

3 http://www.un.org/ga/search/view_doc.asp?symbol=A/C.3/70/L.3 United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules

4 Office of the Inspector of Prisons, COVID-19 Thematic Inspection of Limerick Prison, 6 - 7 April 2021

5 https://thecritic.co.uk/issues/april-2021/the-trans-rights-that-trump-all/

6 https://womensdeclaration.com/documents/169/20_April_EU_hate_speech_submission_WHRC_SE_MO.pdf

7 https://www.theguardian.com/uk-news/2018/oct/11/transgender-prisoner-who-sexually-assaulted-inmates-jailed-for-life

8 https://www.oireachtas.ie/en/debates/question/2020-10-07/209/

9 https://www.oireachtas.ie/en/debates/question/2021-01-13/697/

10 http://www.thetimes.co.uk/article/why-was-convicted-paedophile-allowed-to-move-to-a-female-jail-nmpbfm272

11 https://web.archive.org/web/20210603065453/https://www.lawsociety.ie/gazette/top-stories/male-bodied-transgender-inmate-housed-with-women-prisoners/

12 https://www.parliament.scot/chamber-and-committees/committees/current-and-previous-committees/session-6-citizen-participation-and-public-petitions-committee/correspondence/2021/pe1876_h-professor-alice-sullivan-submission-of-27-august-2021?s=09