England and Wales’ current criminal justice policy prioritises the wishes and feelings of those who identify as transgender and needs to be reviewed as “a matter of urgency,” a conservative think tank has argued.
In its latest paper published on Monday (pdf), the London-based Policy Exchange think tank addressed the impact of policies and practices within the criminal justice system in England and Wales which classify and treat suspects, defendants in criminal trials, and convicted offenders on the basis of their “gender identity” rather than their biological sex.
Its author said that these “policies are not aligned with the law and have developed in the absence of public scrutiny or democratic consensus,” and that “they need to be reviewed as a matter of urgency.”
Prioritise Sex Over ‘Gender Identity’
Writing in its foreword, the Scottish SNP MP Joanna Cherry, said that the treatment of those who speak out was “positively McCarthyite.” Cherry herself was subjected to an “18-month campaign” of abuse because of her belief that “women are adult human females.”
The 72-page report by the legal academic and former solicitor Maureen O’Hara titled “Why criminal justice policy needs to prioritise sex over ‘gender identity'” noted that in recent years policies have been affected by self-declaration of gender identity within the criminal justice system.
Ministry of Justice figures published in 2020 show that 98 percent of those prosecuted for sexual offences in 2019 were male. The majority of those who were sexually assaulted were female.
Individuals who have gained legal recognition of their gender via a gender recognition certificate (GRC) can be issued with a new birth certificate in their acquired gender if their birth was registered in the UK.
O’Hara listed many examples where “extreme ideology” clashed with official guidance despite the fact “that this is not aligned with the law.”
“However, the concept of ‘gender identity’ frames gender as an individual, subjective identity based on an idea. Some of those who subscribe to this concept believe that ‘gender identity’ should take precedence over biological sex as a social and legal category. Some believe that there is a spectrum of gender identities,” wrote O’Hara.
For example, many police forces have recorded suspected and convicted offenders who identify as transgender on the basis of their self-declared gender identity rather than their biological sex.
Judges also lean on official guidance on trans issues from the Judicial College’s Equal Treatment Bench Book. In one such case, a woman was instructed by a judge to address one of her attackers, who self-defined as a trans woman as a “she” or “the defendant,” as a matter of “courtesy.”
Trans-identifying male prison officers are not permitted to search female prisoners, including officers who hold a GRC. But this could change as former Justice Minister Lord Wolfson of Tredegar said in 2021 that “prisoners and staff members in receipt of a GRC have the right to be treated as their acquired gender in every respect.”
The current prison policy enables trans-identifying males, including sex offenders, to be placed in women’s prisons. These offenders include those with and without GRCs. Transgender offenders are first sent to a prison that matches their legally recognised gender and any request to move to another prison is subject to a “robust risk assessment.”
Dr. Kate Coleman, who runs the organisation Keep Prisons Single Sex, which was set up in 2020 to campaign for the right of female prisons to single-sex provision, was quoted in the report.
“I think as soon as the general public became aware of what has been going on, I think the pushback is evitable. People have a common-sense fact-based understanding of sex. You don’t need to be a scientist, philosopher, or biologist, you don’t need to be a lawyer. You know what the common sense approach is, and you know what reality is,” Coleman told The Epoch Times reflecting on the report.
“The individuals and the organisations that have been keen to get transgender ideology embedded throughout our legal framework and legislation at a very deep institutional level, they’ve been doing this for decades and the common sense pushback in and of itself isn’t going to change that. It’s going to be a long process to undo this for hospitals for data collection, for prisons, etc.,” she said.
Coleman said that the women she talks to in jails are vulnerable and often have been the victims of sustained violence at the hands of men, including sexual violence. She said when they are confronted by men who identify as women in prison, they have to use pronouns “she/her” and their female names or they get punished.
“I just find horrifying the level of lying, manipulation, and gaslighting of this group of women who, for very good reasons, have a very visceral recognition of what a man is and what male violence is, but they are not allowed to name it as such,” she said.
A Prison Service spokesperson told The Epoch Times in a statement that: “Transgender prisoners make up just 0.2 percent of the prison population and 94 percent of transgender women in prison are managed in the men’s estate.
“There have not been any sexual assaults by transgender women in the women’s estate since we strengthened safeguards in 2019,” she added.
The Yogyakarta Principles
The report wrote that in 2016 the “House of Commons Women and Equalities Committee’s Report on Transgender Equality” (pdf) raised the possibility that the UK government should adopt the overarching principles of the Yogyakarta Principles.
The document, which has no status in law, was written by lawyers, human rights experts, and trans rights activists.
“In other words, the ultimate aim of the Yogyakarta Principles is the complete elimination of all sex and gender markers from the law,” wrote O’Hara.
Last year, the publication The Critic reported that Yogyakarta Principles were “credited with influencing national governments such as Argentina, Ireland, Denmark, and Malta, and some Canadian provinces, to introduce ‘gender identity’ recognition on the basis of self-identification.”
The report said that any of the problems identified “could be significantly ameliorated by ending the de facto self-declaration of ‘gender identity’ within the criminal justice system.”