The Curious Case of a Defendant without a Gender Recognition Certificate

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Amber M Hobson

To mark this week being Transgender Awareness Week, Amber M Hobson of Wilberforce Chambers comments on the issues facing Transgender Defendants who do not have a Gender Recognition Certificate and face incarceration.

As of 2018 HMPSS recorded that there were 139 prisoners identifying themselves as transgender within the custodial setting. Although the number remains small, this is a significant increase from 2016 when records began (which recorded just 70 prisoners).

Perhaps due to the numbers of such prisoners and defendants being low, there is a lacking of material and precedent in this area. This article seeks to explore issues that can arise where a transgendered Defendant, pre-conviction, faces a custodial sentence.

The Gender Recognition Act 2004 allows a person to legally change their gender. Where a person goes through the process and obtains a full (rather than an interim) certificate, this person will be legally recognised in the gender they have transitioned to. This affords them the ability to obtain legal documents and so forth, which reflect their identity. However, not all persons who decide to transition or live in a different gender to that they were assigned at birth, choose to go through the gruelling process of obtaining a full recognition certificate.

There can be a number of reasons why a person chooses not to take this route and it is important first of all to bear in mind that this is a personal decision. The Equality Act 2010 affords someone who is transgender certain rights and freedoms from discrimination and for some, this affords enough protection to their rights.

Issues can arise however for a Defendant facing a custodial sentence if such a Defendant’s “legal gender” is at odds with what I will refer to as their “lived gender”. There are particularly serious ramifications for a Defendant who has physically transitioned, for example a transgendered woman facing incarceration in a male estate. Where someone does not have a full certificate, for the purposes of the prison service, such a Defendant will be considered for allocation in the first instance, on the basis of their legal gender, notwithstanding their transition.

What ought to happen, if a Defendant faces a custodial sentence but remanded on bail, is that probation should raise this issue with the relevant estate. Since October 2019, HMPPS have had the “The Care and Management of Individuals who are Transgender” policy in place. This sets out that where probation notify an estate of a case where a transgendered Defendant is at risk of a custodial sentence, where adjournment allows, a Local Transgender Case Board ought to sit.

The issue that then arises is that a Local Case Board will allocate a person to their legally recognised gender (or ‘best available evidence’). This can clearly cause issues, for a person whose identity is at odds with their ‘legal gender’.

If it is proposed at all to allocate a person to an estate that does not match a persons legally recognised gender, a “Complex Case Board” must then be convened. An issue can arise that if adjournments are not facilitated by the Court, a transgendered person can find themselves allocated to the estate matching their legal gender by the Local Case Board and then they must await a board sitting (which must be done within 14 days) to decide whether this is appropriate or not.

Should such a person face a custodial sentence, their defence team need to be alive to the particular difficulties they will face and raise this in good time with the Court and probation so that arrangements can be made which do not trespass on a persons human rights. If an adjournment is necessary to allow time for a case board to sit, the Court must be asked whether this is possible in line with the interests of justice. However, the Complex Case Board will not request that a Court to adjourn any proceedings, from experience, they will merely recommend that a transgendered Defendant is allocated to an estate matching their legal gender for a period of up to 14 days and then they will make their arrangements. The onus is therefore very much on the practitioner to ensure that a Defendants rights are carefully considered.

What the practitioner in these situations must be alive to, is the policy of the estate, but also the engagement of human rights (here potentially Article 3, Article 8 and Article 14) and the rights of persons under the Equality Act 2010. The reality is that transgendered Defendants face a situation which would never befall their cisgender counterparts. This article does not go as far as any critique of the policies in place save to say that this is clearly a developing area for both legislation and policy.

Further to the above, there are a number cases which consider the human rights implications for transgendered prisoners in custody, however there is not a wealth of precedent available for prisoners awaiting sentence.

It is ideal that any Defendant is given opportunity by the Court for at least the Complex Case Board to sit and also that if a Defendant is in the process of obtaining a Gender Recognition Certificate, that this process be allowed to finalise. The process of obtaining such is lengthy and it may be that dependant on a given Defendants stage in such a process that it is not appropriate or in the interests of justice to wait for this process to conclude. In such situations it is all the more important that the relevant boards are able to consider a Defendants case. 

If a Defendant however, does not wish to obtain a Gender Recognition certificate at all, a Defendant should not feel obligated to do so. It is wholly unsatisfactory that a person should feel strongarmed into legally defining themselves in order to avoid being misgendered in the custodial setting. Again, in such situations the complex case board can take into account an individual situations and circumstances. The main issue for any Court will be the counterbalance between enough time being afforded to the prison service for the relevant boards to sit and delay to justice.

Clearly a more significant issue is in a case which warrants a remand into custody, which will mean a person faces allocation in respect of their “legal gender” and then a wait of up to 14 days for any possible remedy. Consideration should be given at the earliest opportunity to such considerations as set out above during any remand application of the Crown and such representations made as necessary for bail to be given with stringent conditions.

In summary, the landscape of the criminal justice system still raises serious issues for transgendered defendants. The reality of facing incarceration in an estate not matching ones ‘lived gender’ is something which must be taken seriously and approached cautiously. The Court must be made aware of any difficulty and probation have a significant role to play in assisting by liaising with the Local and Complex case boards.