Oral evidence: Transgender Equality Inquiry, HC 390Tuesday 15 September 2015
Oral evidence, 15 September 2015.
Witnesses
Professor Michael Brookes OBE, Professor of Forensic Psychology, Birmingham City University, and Megan Key, Equalities Manager, National Probation Service, gave evidence.
Chair
Thank you so much for joining us. Can I apologise for the fact that we are running late? Our previous group gave us a great deal of food for thought. I know you will as well. I know that a number of Committee members will be in and out during the session, so please forgive us for that. Could you just briefly start by introducing yourselves and then we will move on to Flick, who has our first question?
Megan Key
My name is Megan Key. I work for NOMS, the National Offender Management Service, and specifically the National Probation Service. I have been in the service since 2005. I started as a trainee probation officer. I then worked as a probation officer and a senior probation officer in inner-city Birmingham. I have also done project management work. My current role is as the Equality and Diversity Manager for the Midlands division of the National Probation Service. I was also a finalist in the Probation Champion of the Year Awards this year for my work on trans issues and I am a finalist in this week’s National Diversity Awards for being a positive trans role model. I guess it is important that you understand that outside of my role as a civil servant—I am here today representing the Civil Service—I am an advocate, educator and activist in the trans community.
Professor Brookes
I am not here representing the Prison Service or NOMS, although I previously worked for the Prison Service, my last post being Director of Therapeutic Communities at Grendon Prison. I retired in 2014. Prior to that, I worked in headquarters, at the East Midlands area office and at HMP Gartree. Prior to that, I worked in a youth treatment service. I am currently Professor of Forensic Psychology at Birmingham City University. I bring some awareness and knowledge of working in the Prison Service and working in a treatment setting in which there were some transgender prisoners, but I am not representing NOMS or the Prison Service.
Chair
Before Flick asks the first question, I should point out that we had also invited Michael Quinn from Out‑Side‑In to be part of the panel today to represent people within the service. He is unable to be with us, but I am going to ask whether he could submit some written evidence to ensure that we capture his perspective as well.
Mrs Drummond
It has been suggested that trans people are over‑represented in the criminal justice system. Do you have any evidence for that? What might be the reasons behind it?
Professor Brookes
The proportion depends on what you take as the number of trans people within the general population. I have read figures between 2,500 to 3,000 and 500,000. What I have read is that there are around 100 prisoners within the prison estate who are trans, but the Prison Service does not currently keep a record or undertake any systematic evaluation of the treatment and work with trans offenders.
Megan Key
I would agree that there is very little quantitative research around the trans population in general, let alone in the prison or probation estate, because there is a lot of discussion about how valuable that data collection is and whether all trans people want to have their data collected. There are trans people who, once they go through the transition process, no longer consider themselves to be transgender. It is a really important point about the over‑representation. If we think about trans people in the general population—I am a transgender woman; it is good that I say that, really—trans people are more likely to experience mental health issues, substance abuse and suicidal tendencies, and are more likely to self‑harm, than the rest of the general population. We know in the Prison Service and the Probation Service that those are some of the things that contribute to offending, so it stands to reason that there are going to be more trans people in the prison system.
Professor Brookes
It links into why people offend in the first place and the multiplicity of reasons for that. As you have been hearing through your hearings in terms of the harassment and victimisation that trans people can experience, sometimes there is a negative reaction to that, which is why some of their responses may be captured within the criminal justice system and drawn into it as a response to what they have experienced within society in terms of rejection. That is a factor to take into consideration. When working with trans people, you are working with the identity issues, you are working with their offending and you are working with the interrelationship between the two.
Mrs Drummond
I was asked to ask that question, but it seems to me that that is a question we should not be asking, because people are people; you already are a woman. Hopefully, we will get to the stage where we do not need to ask that sort of question, if you see what I mean. I know it sounds a bit complicated, but you know what I mean.
Professor Brookes
We are talking about small numbers both within the general population and within the criminal justice system. The question always is: how can wider society adjust and adapt to a minority and take into account their needs and considerations? When you have hierarchical organisations, that is always much more complex, much more difficult and much more challenging than in other settings.
Ruth Cadbury
I just wondered what we know about transgender young people in the criminal justice system.
Professor Brookes
We know very little, because the evidence and the research just is not there. With Laura Jones, who led the project really, we undertook a literature review, which was published in the Prison Service Journal in 2012, which highlighted the paucity of research information that is around. Much of it is based in North America and especially the United States. There have been a couple of papers written in the United States setting out the experience of trans offenders who are imprisoned. There was also one in the Prison Service Journal and there was an article recently in the Journal of Forensic Practice around the experiences of prison staff working at Whatton and their experiences of working with offenders, but it is very limited. In a sense, it is only in the past five years that the criminal justice system has begun to systematically look at and address this issue, with the coming of the Equality Act and how it takes into account the Gender Recognition Act 2004 and how we manage that and work through that. Sorry, I am slipping into my parlance of working for the Prison Service, but there we are.
Jess Phillips
I am delighted that you are all Brummies. I am too a Brummie who has worked in an offender service. I was interested to ask Mr Quinn, who is not here, about the experiences of trans people and whether they feel they are being treated fairly at court. I suppose that is one issue that we will certainly be interested in hearing about either today or from him later. Specifically to Megan, there are issues around writing pre‑sentence reports and supporting people to get the right convictions and sentencing at court. Things like Corston went on the way to doing an awful lot to make sure that sentencing got fairer in cases of female offenders, but I am not sure whether that has been the case with—
Megan Key
Whether it has gone that far for trans people. It is a really good question. Pre‑sentence report writers do have an obligation to consider the whole person and not just the offence. At the moment, we have basic training for all probation staff of a talk from the NPS—because it is the National Probation Service that writes the report—about equality. Trans identity comes into that, but I would welcome more in‑depth training within the Probation Service that consider trans people’s needs. I am the national lead on trans issues in the Probation Service and I am one of seven equality managers across the country and Wales. My colleagues routinely will speak to me in the report-writing process about how to best consider trans people’s needs, but I do think that there is an opportunity to do more there.
Jess Phillips
When you are writing a pre‑sentence report, for example, if the pathways to offending, such as substance misuse, that you highlight—is it your experience that magistrates are more likely to put into community orders or—
Megan Key
So, it is about sentencing outcomes.
Jess Phillips
Sentencing outcomes, yes.
Megan Key
We do not have any research on sentencing outcomes. If I give you some context, the National Probation Service has only been in existence for just over 12 months as a result of the Transforming Rehabilitation agenda set in place by the Government. Prior to that, there were 35 separate probation trusts, so we did not have a cohesive way of drawing data together. As I said, one of the things that the new National Probation Service is going to focus on is extrapolating better data about trans people. I do not have an answer for you at the moment.
Jess Phillips
You are not sure whether judges are wary of putting people who would be considered by them to be ambiguous into one gendered setting or another in prison.
Megan Key
There are specific prison policies regarding the placement of trans prisoners in the prison estate, and NOMS is currently reviewing those. There is an opportunity to be more flexible about where we place prisoners. At the moment, the guidance says that you need to have a gender recognition certificate to be placed in the estate that matches your acquired gender. We are looking at a more flexible approach that recognises individual trans people’s needs. Does that help you?
Jess Phillips
Yes.
Chair
Can I just ask a quick question on that? If the Prison Service is not measuring the number of people within its service who are trans and if there are the problems that you have identified, how can the Prison Service be content that it is complying with its duties in the Equality Act?
Professor Brookes
I am not here to speak on behalf of the Prison Service, but it is an evolving issue. Prison Service Instruction 7 of 2011 began to set out a framework of working it through and if the Prison Service does not adhere to that, then complaints have been upheld by the Prisons and Probation Ombudsman in terms of not following the right guidance. They are learning. As Megan was saying, it is about how we deal with this issue in an estate that was very split between male and female, and had very set and regimented policies to deal with security and with treatment issues. How do we take into account a small group of people who are getting increasing recognition for who they are? How do we manage and how do we look after them, bearing in mind all the other responsibilities that are placed upon prison governors in terms of security and control? How do we best manage that?
Chair
It might be worth us talking to the Prisons and Probation Ombudsman about the cases that they have looked at.
Professor Brookes
Yes. Certainly there is one in terms of a briefing paper that was produced in 2003 looking at sexual abuse, and there is one in terms of a transgender issue that they investigated.
Megan Key
It is important to say that the Probation Service and the Prison Service are updating their policies on managing trans people. We know that knowledge and expertise about trans people in the community in general has moved on in the last few years. The National Probation Service is shortly due to start collecting data on trans people who choose to disclose that to us at their first point of contact with the Probation Service. That will be usually after sentence at court. That is a step forward.
Professor Brookes
Previously it has been very reactive on a case-by-case basis in which a prisoner has had contact with the health service to pursue a discussion and possibly surgery to move them from their gender at birth to the gender they feel most comfortable with. It is then: how do you manage that individual? There is a unit within Albany of 35, but—you have mentioned training—even there, the IMB has recommended that staff need greater training. It is very much on a case-by-case basis for a small number of offenders rather than having a consistent approach. It is encouraging to hear that, in a sense, the Prison Service is starting to be a bit more proactive and asking the questions rather than just waiting for the prisoner to come and say, “This is where I am” and having those discussions with the health services. There is a debate also about where treatment and advice is provided. Is it through NOMS, with a focus on reducing offender behaviour, or is it through the health service and the commissioning of services to prison establishments? How best are those needs met?
Angela Crawley
To follow up on Jess’s point, in Scotland, one of the approaches that was taken, particularly to female offenders, was a custody-in-the-community approach, because the research showed that someone who stays within a family setting is less likely to reoffend and they have support networks there. Is that something that you would recommend to the justice system of England and perhaps elsewhere?
Megan Key
I am not familiar with the Scottish practice. Is this more about sentencing people to community orders as opposed to custody?
Jess Phillips
Alternatives to custody.
Megan Key
Definitely, yes. Working in the National Probation Service and previously the Probation Trust for the last 10 years, where possible, it is our wish to recommend sentences that are community‑based, definitely. That is what we are there to do. We try to reserve recommending custody to the most dangerous people.
Cat Smith
Thank you, Megan. You have already answered some of the questions that I had. With the new instruction coming out soon, I was wondering whether or not you could point at anything that you would think would be a good thing to be included in that.
Megan Key
That is a good point. I cannot comment specifically too much on the new instruction itself, because it is still in draft form. It is still in the midst of internal consultation and then it has to go for external consultation. Personally speaking, it is an opportunity for NOMS to get it right about where we place prisoners according to their gender status. As I mentioned earlier, somebody having a gender recognition certificate at the moment draws a very firm line in the sand and we are looking at how we could be more flexible in our approach. In the current policies, there are already very clear guidelines for prison staff around allowing people to live in their real life role in prison—about access to clothing, some types of makeup and things like that. The policy is already there and we have very clear expectations of our staff that they must adhere to that policy. If not, as we have already mentioned, there is a complaints procedure and we can hold people to account.
Cat Smith
Is there any difference between young people’s experience of the criminal justice system and adult prisons in terms of all this?
Megan Key
Unfortunately, I cannot really comment on under‑18 offenders, because that is not my area of expertise. I do not have any knowledge of people under 18 in the criminal justice system, I am afraid.
Ben Howlett
If you have said this and I have missed it, I do apologise, but a lot of what you have been talking about relates to binary trans people, not non‑binary trans people. I can imagine that is going to be an awful lot more difficult within prisons and the Probation Service than in the binary community itself. Are there areas that you have identified as a problem or areas you think need to be improved in the non‑binary area?
Megan Key
The concept of non‑binary has become more prevalent over the last few years. As I said, I am active in the trans community outside of work as well. More research needs to be done. I could not specifically comment on what challenges I may foresee there being, but I would totally welcome more research into the area of not just non‑binary offenders but trans offenders as well.
Cat Smith
I would be quite interested in your view on that, Professor Brookes.
Professor Brookes
The issue for the Prison Service is where you locate somebody. Is it in the male estate or is it in the female estate? In a sense, you have to come down on one side or the other, unless the Prison Service or NOMS is being more flexible in thinking about where is the most appropriate location for the individual in terms of how they perceive themselves. You only have a binary choice. There is not a midway point. Predominantly you would go with the gender of birth, unless there are good reasons not to. The only way of being in an establishment in terms of your gender of choice is if you have a gender recognition certificate.
Chair
Forgive me for my lack of knowledge of our prison system. What work has been done to ensure that that binary choice is the only way to run a prison service?
Professor Brookes
I do not think any work has been done; it has just been the assumed way of operating over the past 200 or so years.
Chair
I presume it is the same in every country in the world.
Megan Key
What I would say is that we operate in a binary society, do we not, and so—
Chair
The NHS does not offer a female service and a male service. We access it as people.
Megan Key
They do have single‑sex wards. Is that equivalent to single‑sex prisons?
Chair
Okay, so there has not really been any work done on that.
Professor Brookes
No. I think they think it is a new issue.
Jess Phillips
Thinking now about how—I am going to use the right political term—Transforming Rehabilitation has and is currently changing the way that services look and what specialisms are provided, there were lots of awards won by brilliant probation trusts for doing brilliant things and partnership working together around some of these issues. I just wondered if you are seeing any change, either for the positive or for the negative, out of the new process.
Megan Key
Definitely. It is clear that the Transforming Rehabilitation process has created two different types of probation services. There are the private CRCs—the 21 community rehabilitation companies—working alongside one National Probation Service. Throughout the country, there are various partnerships in place. It is a new service—it is just over 12 months old—so there is more work to be done, but the fact that we have started looking at new policies and we are working with different local partners across the country is a positive outcome.
Jess Phillips
Was there something about it in the contract for the CRCs, though? Was there anything specifically around trans support in the contract?
Megan Key
CRCs, because they are delivering public sector services, still have to adhere to the public sector equality duty in fulfilling those services, so there are still those added protections. Gender reassignment is one of the protected characteristics in the Equality Act, so they are committed to delivering that. If not, they can be held accountable.
Jess Phillips
I suppose there is no more of a postcode lottery than there used to be. It was just different trusts before with different schemes, presumably. 21 different companies could do 21 different things and if you were trans and you were sentenced in Carlisle, you would potentially get a completely different service from if it was in Croydon.
Megan Key
In the CRCs, yes.
Jess Phillips
I suppose that was always the case with the trusts anyway in lots of cases.
Megan Key
Yes.
Chair
I know there was one particular question that we had around the case management system in the Probation Service. Does it record data on trans people?
Megan Key
As I said, the National Probation Service is shortly due to start collecting data on trans people—those who choose to disclose it.
Chair
So it does not do it yet, but it will.
Megan Key
Yes. We have altered our computer management systems, nDelius and OASys, to recognise that change and there will be mechanisms to record it confidentially.
Chair
Another very detailed question is: when it comes to the programmes that are being offered, have you encountered any problems with regard to getting placements for trans people, like work placements or such?
Megan Key
It is important to say that we do not offer trans‑specific accredited programmes. As we talked about the binary system, the programmes offered are binary. As my colleague has said, the number of trans people who come through the system is very small. The opportunity for us is to understand better how trans people experience accredited programmes—what makes a successful outcome, what makes a successful sentence and how trans people complete those sentences—and that is where I would be looking to do more research.
Professor Brookes
The place where they do come together is in therapeutic communities, otherwise you have this delineation between health and counselling and perhaps some work by individual offender managers or prison psychologists with trans people and their offending, or else, within NOMS, a focus upon accredited offender behaviour programmes. Within therapeutic communities, you can look at the whole person and you can look at this interrelationship between somebody’s identity, as you do with their background and life circumstances and childhood histories, and their offending. That is a much richer therapeutic context in which to explore these issues. There are a number of therapeutic communities throughout the country. Grendon is one but there are also therapeutic communities at Dovegate, at Warren Hill and at Gartree, and there is a female therapeutic community at Send. Those are the best places, really, in which to work through the complexity of the interrelationship between somebody’s identity and their offending.
Jess Phillips
You have partially answered some of my questions around whether there is proper availability of specifically that being the presenting issue—that somebody’s identity is the challenge—because there are lots of specific other things that lead with other pathways. Going back to the whole—I know it is binary and we have got down to the fact that it is men and women. Is there a potential issue with women‑only spaces offering services under the CRC? I used to work for a Women’s Aid. It ran a female offenders service; it was a women‑only service housed in very much a traditional women‑only service, although we would not have cared—but lots would. Is there an issue about that going forward? That is a really common model now that the CRCs are contracting out work to much more traditional women-only spaces because they do not know what to do with them.
Megan Key
I work for the National Probation Service, so I could not really speak for how the different CRCs will operate, but they do have to operate within the law.
Jess Phillips
It would be the same issue for the NPS. If you had a high‑risk prisoner, or a high-risk person coming out of prison, we would have worked with those people through the NPS as well as the CRCs.
Megan Key
Yes. The challenge is around what the partnership obligations are. If somebody has a gender recognition certificate, they are afforded the same rights as somebody with their birth gender as their acquired gender. There are some complex challenges around trans women—we talk about trans women mainly, because 95% of the offending population is of people assigned male at birth. The challenge is really around trans women accessing services. I agree with you that there is a real challenge if somebody does not have legal recognition in their acquired gender. Currently you need a GRC for that.
Jess Phillips
Even if you did have legal recognition, there is a move in feminist organisations, especially accommodation organisations, where there is a fear over that being a challenge. I do not agree with that, but that does exist.
Megan Key
Yes.
Professor Brookes
Those are the challenges that are faced within the criminal justice system. Some of those issues you raised were the ones around some of the initial reluctance within the Prison Service of locating trans male to female in the women’s estate, certainly if they have committed a sexual offence against a woman. We know the history of women offenders and their views, but those are challenges. In a sense, as a society we have to move to say, “If we recognise them as women we cannot be exclusive in terms of providing that service”. That is an issue this Committee might want to explore.
Jess Phillips
You would have a risk access pathway problem with anyone originally female, born male, whether they had committed a sexual offence, ever being allowed to stay in any gender‑specific service. In my experience, that would be a no‑no, in accommodation terms, regardless.
Professor Brookes
That is a challenge.
Jess Phillips
Yes, that is a challenge.
Megan Key
I should make it clear, though, that we would not exclude male to female transsexual people from the female estate because they have committed a sex offence. I just want to make that point. That is not the way we work.
Chair
Can I just turn our thoughts back to prisoners in prison, and particularly trans individuals in prison, and the difficulties that they may face, particularly around bullying and sexual assault? To what extent have you looked at that? How effective is the Prison Service at dealing with it?
Professor Brookes
Again, this information has not been systematically collected. Again, you have individual cases of trans people reporting these issues. Given the environment that the prison is, given that the general tenor of prisoners is to try to keep a lower profile and not to bring yourself to the fore of people’s attention, by moving from dressing as a male in a male prison to dressing as a female, you are automatically attracting attention and highlighting issues and making it more likely that you could be victimised. It is about the Prison Service being conscious of that, being proactive in recognising those difficulties and incorporating it proactively within their anti‑bullying and violence reduction policy, as well as assertion skills for the individual concerned about how you can live as a female within a male establishment and be yourself, as it is for a lot of prisoners who are quite vulnerable.
Chair
It is quite interesting. When we reviewed the evidence that was given to us, there appeared to be a level of cynicism around perhaps some who are in transition and whether that is something that is a true reflection of where they are as individuals or whether the motivation lies elsewhere. I was quite astonished at that quite acute level of cynicism.
Professor Brookes
That reflects what is in society. Prisons just mirror what is within society. What is reported in the press could be a discontented member of the prison staff reporting that and developing those issues.
Megan Key
I would agree. I read one piece of research that said that 45% of people in general society would not like it if one of their family members was transgender. There is stereotyping and ignorance, which mirrors general society. I am aware anecdotally that there is scepticism by some people, but we do have very clear rules and a policy about how to treat trans people, which we have talked about. PSI 7/2011 is being reviewed and updated to better react to trans people’s needs. Our expectations are that staff work with trans people and support them if they are bullied or harassed in the prison setting.
Professor Brookes
The flip side to that coin is it is quite a brave decision to come forward, especially, as I say, that the norm is you keep yourself quiet and you do your time with as minimum fuss as possible, irritating as few people as possible, in order to progress safely through your sentence. To do something that is deliberately out of the norm takes a great deal of courage.
Chair
So there is no evidence that this is being used as a ploy, for want of a better word.
Megan Key
It is a really good point. As the lead on trans issues in the Probation Service, I have heard these views and I have tried to find research either way that confirms or dispels them and I do not have that research. It is something that I would be keen for us to commission in future.
Chair
Just another very detailed point in terms of trans people on remand and the problems that they face, particularly if they do not have gender recognition certificates or ID to identify themselves in terms of their gender. Is that, and how that can be resolved, something that is being looked at? It seems to be a particular problem for that group of people.
Megan Key
That will be looked at as part of the review of the policy on managing trans prisoners, yes. I cannot comment on the outcome, because it has not been finalised yet, but it is something that we are looking at.
Professor Brookes
The difficulty with those on remand is they are in a transient state, so you do not know how long they are going to be there and what the outcome is going to be in terms of whether they are convicted or whether they are not convicted. Therefore, it is difficult to engage them in any long‑term policy, although you would want to keep and maintain whatever assistance and support they were receiving from healthcare professionals prior to being remanded. Continuity is important.
Chair
But that is something that is going to form part of your policy review.
Megan Key
That is right, yes. I have seen drafts of the document, because I am one of the people involved in the internal consultation, and that is referred to, but because it is not published or finalised, it would not be for me to comment on it.
Chair
When is that going to be finalised?
Megan Key
I am expecting it in October or November.
Chair
So relatively soon.
Megan Key
Yes.
Chair
Wonderful. Thank you very much for your contributions today. Do colleagues have anything else that they want to raise at this time? There is probably one other area that it might be useful to just ask your views on, in terms of prisoners and policies for searching prisoners, particularly those trans prisoners who may or may not have found themselves in the right sort of prison.
Megan Key
I cannot comment on it at the moment. I have not seen that in the latest draft.
Chair
That would form part of your policy review—
Megan Key
Yes, of course.
Chair
But at the moment how is that dealt with? What are the procedures and policies at the moment?
Professor Brookes
It is as set out in 7/2011. There are clearly set out procedures for both full searching and pat searching.
Chair
Which are?
Professor Brookes
I cannot remember precisely what they are, but I know that they are listed down there.
Chair
So there are policies and procedures in place. Some of the concerns around that were how involved the prisoner was in the decision‑making process as to how they are dealt with when it comes to searches. Is the prisoner involved in that decision or is it something that is made by the prison staff?
Professor Brookes
My feeling is—but do not quote me on this—that it would follow the procedure for the gender in which that person is recognised. If it is a trans male to female, they would follow the searching procedures for females.
Megan Key
I do have the policy behind me, if you want me to refer to it.
Chair
Maybe it would be possible to give it to us as a piece of evidence.
Megan Key
Of course, yes.
Chair
Brilliant. Thank you very much. I really appreciate the time that you have taken today to come in. I know that preparing for these sessions takes time out of your weeks, so huge thanks from the entire Committee. We believe that the treatment of prisoners and those who are in the criminal justice system is a hugely important part of our work, so thank you very much for the time you have taken and for the quality of the evidence that you have given to us. Thank you. Oral evidence: Transgender Equality Inquiry, HC 390 21