AB, R (on the application of) v Secretary of State for Justice & Anor  EWHC 2220 (4 September 2009) In this case, the Administrative Court of the High Court of Justice held that the continued detention of a pre-operative transgender woman in a male prison breached her right to privacy under art 8 of the European Convention of Human Rights.
The Claimant is a pre-operative transgender woman who was incarcerated in a male prison, serving a life sentence for offences committed while she was a man. The Claimant sought judicial review of a decision to keep her in a male prison and to not transfer her to a female prison.
The Claimant suffered gender dysphoria and had been granted a certificate under the Gender Recognition Act 2004 (UK). The certificate provides that for all purposes the Claimant is a female.
The Claimant wanted to have gender reassignment surgery to complete her female transition. However, the Gender Identity Clinic would not approve her for surgery until she had lived as a woman for a period of time within a female prison. Accordingly, she argued that the decision not to transfer her to a female prison prevented her from attempting to meet the requisite conditions for surgery.
The decision of the Secretary of State not to transfer the Claimant to the female prison was based on factors including:
- her offending history (including attempted rape of a female, as well as manslaughter);
- the lack of guarantees that the gender reassignment would proceed, because of the State’s position that surgery was a ‘clinical judgment’ outside the control of the Prison Service; and
- the considerable cost of placing her in segregation in the female prison before she could integrate into the general population of the prison.
Article 8 of the European Convention recognizes the right to respect for a person’s private and family life, home and correspondence.
The Court firstly considered whether art 8 was engaged. The Court noted that the rights proscribed under art 8 apply equally to every individual stating that ‘the rights of transsexuals have been considered in a number of cases in both the UK and in Strasbourg and the recognition and protection which the Convention confers on their personal autonomy and human dignity is now unassailable, following earlier uncertainty.’
Noting that ‘the essence of the claim is the interference with the Claimant’s ability to progress to full gender reassignment by continued detention in a male prison’, the Court held that art 8 was engaged because the inference with her autonomy was significant and personal. The interference was said to ‘go to the heart of her identity’ and be related to the offences she committed.
The Court then considered whether the limitation on the Claimant’s rights under art 8(1) could be justified as proportionate under art 8(2).
The Court considered the justification for not transferring her to a female prison to be essentially for resource implications because the Secretary of State accepted that a biologically female prisoner who presented the same risks as the Claimant would be detained in a female prison.
The Court considered that ‘when issues so close to the identity of a prisoner as here, so intimately concerned with her personal autonomy, the deployment of resources as a justification for the infringement of such rights must be clear and weighty in order to be proportionate’.
The expert evidence drew a clear link between the Claimant’s offending behaviour, the gender dsyphoria, and the severe frustration that is likely to result from the denial of the opportunity to apply for surgery. It was accepted that these factors may indeed increase the difficulties of living in a male prison and could lead to segregation in any event.
The Court held that the Secretary of State failed to consider these factors and the resource implications associated with the continued detention of the Claimant at a male prison. Instead, the Secretary of State had focused exclusively on the costs of placing the Claimant in segregation in a female prison. The Court was not satisfied that the resource considerations relied on by the Secretary of State were proportionate to justify the interference with the Claimant’s personal freedom.
Accordingly, the Court held that the decision not to transfer the Claimant to a female prison was in violation of her art 8 rights.
Relevance to the Victorian Charter
This case has direct relevance for the interpretation of s 13 of the Victorian Charter, which similarly to art 8 of the European Convention, enshrines the right to respect for a person’s private and family life, home and correspondence.
Victoria does not have a formal policy in relation to transgender prisoners. In practice, male to female transgender prisoners who have not undergone gender reassignment surgery will be detained in male prisons and vice versa. Accordingly, this decision may have significant implications for transgender prisoners in Victoria who want to reside in a particular gendered prison.
The decision is available at http://www.bailii.org/ew/cases/EWHC/Admin/2009/2220.html.
Prabha Nandagopal is on secondment to the Centre and Amnesty International from DLA Phillips Fox