Green, R (on the application of) v Secretary of State for Justice [2013] EWHC 3491 (Admin)

Case No CO/10748/2012[2013] EWHC 3491 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
The Combined Court Centre
1 Oxford Row
Venue LeedsDate 4 th December 2013
West Yorkshire
LS1 3BG
Before
HIS HONOUR JUDGE JEREMY RICHARDSON QC
Between
R (on the application of Green)ClaimantSecretary of State for JusticeDefendant
Mr Jason Elliott (instructed by Chris Noon Chivers Solicitors Durham) for ClaimantMr Oliver Sanders (instructed by The Treasury Solicitor) for DefendantHearing Hearing dates: 28 th October 2013
JUDGMENTHis Honour Judge Jeremy Richardson QC:Introduction
[1]This case is both sensitive and difficult in equal measure.[2]It is sensitive because any issue covering the desire of a human being to change their gender is a matter of profound import. It is difficult because the claimant is a serving prisoner and not a free individual able to conduct her life as she wishes. At all stages of this case it is critical to remember the context in which I decide this case is that of a prison, and there are serious security considerations. What may happen in everyday life without too much difficulty, when translated to a prison suddenly poses truly difficult issues.[3]I am immensely grateful to both counsel for the sensitive and helpful way in which this case has been conducted.[4]Kimberley Green (the claimant) seeks to impugn various decisions of the Governor of HMP Frankland (the Governor) relating to her situation as a prisoner seeking to transition from the male gender to female. It is asserted the Governor has acted in an unlawful and discriminatory manner by placing barriers in the way of the claimant living the gender role she has chosen contrary to the policy of the Secretary of State for Justice (Secretary of State) in PSI 7/2011.[5]The claimant is a man, but for the purposes of this judgment I shall refer to him in the female gender as she has changed her name by deed-poll from her birth name of Craig Hudson. I will only refer to that name where necessary to make this judgment intelligible. For the most-part I shall refer to the claimant as “the claimant” in a non gender-specific way. It will save confusion and risk of discourtesy.[6]The Secretary of State has responsibility for HMP Frankland via the Governor and it will be convenient if I refer to the defendant to this judicial review as the Governor. The argument of the Governor is engagingly straightforward: there has been no departure from national policy in the way the claimant has been treated; and, even if there has, entirely rational reasons have been given to justify that. It is also argued, contrary to the submissions of the claimant, there has been no direct (or any) discrimination – indeed, arguably more favourable treatment has been extended to the claimant than to a male prisoner who is not seeking gender reassignment.[7]I propose to divide this judgment into sections for ease of reference:(1) Introduction(2) The Gender Recognition Act 2004(3) The Factual Backdrop(4) Prison Policy: The Care and Management of Transsexual Prisoners (PS1 07/2011)(5) Facts: HMP Frankland(6) Claimant’s Argument(7) Defendant’s Argument(8) Has there been a breach of policy?(9) Departure from policy(10) Discrimination under the Equality Act 2010(11) Conclusion

The Gender Recognition Act 2004

[8]This case is not an appropriate vehicle for a detailed discourse on the Gender Recognition Act 2004 (2004 Act). In simple terms it permits individuals over the age of 18 to apply for a Gender Recognition Certificate when they are desirous (based upon certain criteria) to transfer from one gender to the other. If an applicant has or had gender dysphoria and/or has lived in the acquired gender for 2 years before the application is made, then (subject to certain other conditions) the Gender Recognition Panel must issue a certificate. In general terms the applicant is required to submit a raft of evidence (including photographic evidence) to reveal the acquired gender. Once the certificate is issued the person acquires that gender. In simple terms a male applicant becomes female and a female applicant becomes male.

The Factual Backdrop

[9]The claimant is a serving prisoner. She was born male on 29th December 1983 with the name Craig Hudson. He married a woman called Rachel Hudson. On 21st December 2005 the claimant (together with other family members) was convicted of the murder of Rachel Hudson in the Crown Court at Nottingham before Mr Justice Hughes (as he then was) following a 5 week trial. The claimant was sentenced to Life Imprisonment with a minimum term of 14 years less time served on remand before sentence. There were concurrent sentences of 4 and 5 years for doing acts tending to pervert the course of justice. The entire family subjected Mrs Hudson to repeated beatings and violence. The role of the claimant (who was aged 20 at the time of the killing) was regarded by the judge as being lesser than that of his parents and others. The judge, however, described the claimant’s role as follows:
“It remains the fact, on your own admissions, you were present at most of the significant events in the catalogue of destruction of your wife and there is clear evidence that for a long time you were telling people a whole series of false stories about what happened to her and incorporating into what you said quite false allegation about her. It may be that your account to the police contained a few more hints at the truth than did the accounts of some other people. On the other hand, it also displayed a clear tendency to lie.”
It is also clear from the judge’s sentencing remarks the claimant knew what was happening to his wife and his role in her death meant he assisted them to evade justice. It is clear the claimant, at least in the past, was capable of serious dishonesty by telling lies.[10]The claimant asserts that she is desirous of transferring her gender from male to female. It is not clear when this profound change took place. Certain it is the claimant has male genitalia and physical appearance. I am told she is now bald.

Prison Policy: The Care and Management of Transsexual Prisoners (PSI 07/2011)

[11]The phenomenon of a prisoner desiring to transfer from one gender to the other is unusual within the context of the prison population. Notwithstanding, the relatively few number of prisoners in this group, the Secretary of State has devised via the National Offender Management Service (NOMS), a policy to cover this situation: The Care and Management of Transsexual Prisoners PS1 07/2011 (PSI 07).[12]This policy document came into force on 2nd March 2011. It contains guidance on the care, management and treatment of transgender prisoners. An essential aspect of PSI 07 is that any prisoner who considers him/herself to be transgender and wishes to commence gender re-assignment is permitted to live permanently in their acquired gender role. The aim is “to ensure all transsexual prisoners are treated fairly and in accordance with the law”. Of significance mandatory portions of the policy are italicised.[13]In section 3 covering prisoners living in their acquired gender role the following is to be found (in italics and thus mandatory): “3.1 When a prisoner proposes to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex, the prisoner is considered to have the protected characteristic of gender reassignment for the purposes of the Equality Act 2010 and must not be discriminated against or harassed because of this. 3.2 An establishment must permit prisoners who consider themselves transsexual and wish to begin gender reassignment to live permanently in their acquired gender.” (The paragraph goes on to deal with those under the age of 18 – not relevant to this case)[14]By further mandatory provisions of PSI 07 living permanently in their acquired gender “will include” allowing prisoners to dress in clothes appropriate to their acquired gender and using appropriate names and modes of address. A list of items is set out in Annex B and it is also mandatory for the prison to allow access to items at all times to maintain their gender appearance. This is all irrespective of the Incentive and Earned Privileges Scheme.[15]Annex B provides reasonably full guidance to a prison on prisoners living in their acquired gender role including a dress code. The following is also to be found (un-italicised):
“B5 Transsexual people, particularly those who have not undergone surgery or extended hormone therapy, may use various items to assist with their presentation in their acquired gender. These can range from sophisticated prostheses to padded bras. Regardless of their level of sophistication, access to them can only be restricted in exceptional circumstances. (Incentives and Earned Privileges) is not a justifiable reason for restricting access. B6 These items may only be prohibited when it can be demonstrated that they present a security risk which cannot be reasonably mitigated. The test that is applied to these items is the same as that applied to other items in the prison in which the prisoner is held. Any restriction on these items could be the subject of judicial review. If a prison decides to apply such restrictions, they must be able to provide detailed and reasonable justification for doing so.”
[16]Under PSI 07 it is envisaged a Compact would be agreed between the prisoner and the prison setting out clear information about what he/she may expect from the prison. Other Annexes in the policy cover other aspects of the issue which do not need recital. It is plain the policy is intended to be a comprehensive guide to all prisons in dealing with a difficult and acutely sensitive area of prison life. It is thought by NOMS that the numbers of transgender prisoners are low and likely to remain so.[17]Each individual prison (where relevant) requires a transsexual prisoners policy. HMP Frankland has such a policy.

Facts: HMP Frankland

[18]HMP Frankland is in County Durham. It houses maximum security prisoners within Categories A and B. The wing that houses the most vulnerable prisoners is B Wing. As of 1st October 2013 there were 106 prisoners of whom 26 are Category A and the balance Category B. There are currently 6 prisoners within B Wing who are treated as transgender (one of whom is the claimant). I gather HMP Frankland is regarded as having a level of expertise in dealing with prisoners who wish to change gender. That number of prisoners wishing to change gender is very small. The issue poses a considerable challenge in the context of the secure regime of a prison where other prisoners might be expected to lack an enlightened attitude.[19]The claimant was originally detained at HMP Long Lartin. She made a complaint to the Prison Ombudsman about treatment at that prison. She transferred to HMP Frankland on 4th July 2011 and, subject to a brief period at HMP Grendon, has remained there ever since. She is a Category B prisoner for whom the very highest regime of security is not needed, but for whom escape must be made very difficult. It is unclear whether the claimant has a diagnosis of dysphoria. The evidence on behalf of the Governor provided by Mr Peter Jobling (the segregation unit manager) reveals an unclear (certainly uncorroborated) view as to the precise medical position of the claimant. As of April 2011 a consultant psychiatrist at Charring Cross Hospital in London (Gender Identity Clinic) regarded the claimant as “a conundrum” who appeared to be saying different things to different people. He indicated her description of transsexualism to be of recent origin. Regardless of that diagnostic conundrum there is no doubt the Governor has treated the claimant as a transgender prisoner. She stated she was transgender upon arrival and has been a vocal member of the prison’s group of transgender prisoners. The claimant enjoys an enhanced IEP status within the prison. She applied for a certificate under the 2004 Act on 22nd February 2011 which was withdrawn by reason of the fact she was unable to show she lived in the role of a woman for 2 years. She withdrew her application on 29th June 2011.[20]Thereafter, the claimant has assiduously endeavoured to complain to the Governor (and/or prison officials) about the provision of items for living in the role of a woman. It is unnecessary to set out every item of complaint or the response of the governor. The essence of the repeated complaints was that there was (and remains) discrimination towards transgender prisoners. This included:(1) No access to hormone treatment.(2) No access to wigs.(3) No access to certain prosthetic devices (designed to aid the intimate appearance of a woman – it is unnecessary to be more graphic than that).(4) No hair removal products.(5) No separate changing facilities for the gym and no privacy screens.(6) An expectation that male urinals would be used for drug testing purposes.(7) Items required for living in the female role ordered from certain specialist suppliers were routinely returned at reception.[21]The Governor has responded to these various complaints and it is really only necessary to refer to one or two of these to reveal the situation. The details are contained in the witness statement of Mr Peter Jobling (the segregation unit manager at HMP Frankland) who has the role of Residential Governor. He has called my attention to a range of different prison policy documents relevant to all prisoners as well as those in a transgender role.[22]At HMP Frankland there was a local Trans-sexual Prisoners Policy which permitted prisoners to be allowed to progress towards surgery or a Gender Recognition Certificate and to live permanently in their new gender role. Appropriate clothing and make-up would be allowed to be purchased in the same way as a comparable woman prisoner. It was, however, emphasised that where there are security concerns, individual items would be subject to negotiation and agreement. Prisoners would be allowed to use gender appropriate names and be addressed accordingly by staff.[23]A Transgender Prisoner Compact was signed by the claimant on 6th July 2011. This was intended to be an individually tailored agreement as to the management and treatment of the claimant designed to deal with individual needs and concerns. It would also be able to be adjusted to reflect the particular stage at which the prisoner had reached on the journey to gender change. Dialogue and individual agreement were the lodestars for the compact. Sadly, the claimant has not agreed a recent suggested refinement of the compact relating to her.[24]On 28th March 2012 and on other occasions too, it was asserted the governor has the right to refuse items that could be used to aid escape. Security was averred to be the priority of the prison. A series of requests were made for individual items and subject to individual responses. No useful purpose would be served by a detailed recitation of each of these. There were many complaints.[25]The view of the Governor can, I feel, be distilled in this way:(1) There are regular meetings between staff and transgender prisoners (Gay, Bisexual and Trans-sexual Forum) where issues are discussed and plainly it is used as a means of resolving complaints. (The Forum) [I have read several of the minutes of these meetings which I forbear to recite but have well in mind when deciding this case](2) Specific events and activities are organised to aid support for transgender prisoners.(3) The claimant (in common with other like prisoners) has a card on her cell door to make it clear to staff the name by which she is to be known. The Governor acknowledges that there have been a small number of breaches of this.(4) The claimant may access and wear female clothing and make-up subject to the demand it is appropriate and the make-up is kept “within reason” (as applied to female prisoners in the prison estate).(5) It is denied she is required to present as a man.(6) Whilst away form her residential wing the claimant is allowed to wear female underwear, a bra, minimal make-up, female trousers and other unisex clothing that is found on the “Girl Gear” list. Overtly female clothing is not permitted when away from the residential wing. It is averred there would be an enhanced risk of assault or sexual violence from other prisoners elsewhere in the prison where less enlightened prisoners would react adversely.(7) The claimant does not leave her residential wing as she has a position of a cleaner on the wing. Additionally, she does not wear make-up as a matter of choice (even though it would be allowed). Nor does she wear overtly female clothing.[26]One of the significant complaints of the claimant is that there is an unlawful interference with transgender prisoners obtaining female clothing. The governor explains the position at HMP Frankland in this way:(1) The system whereby prisoners may purchase items incentivises positive behaviour and responsibility.(2) There is a prison policy to cover this: Prisoner Retail PSI 23/2013.(3) Items may be purchased via the prison canteen each week at HMP Frankland. This includes about 600 items such as tobacco, toiletries and groceries. It does not include make-up or clothing. It is inevitable that most of the items on the list are either gender-neutral or male items (after all it is a male prison). There is a system for consultation with prisoners about the content of the canteen list via “canteen reps” (nominated prisoners).(4) The additional way to obtain items is via the Facilities List on a weekly basis. This includes items supplied by companies via their catalogues. This includes female items for the transgender prison population and it may be accessed regardless of the prisoner’s enhanced privilege status (unlike male prisoners). On this list are 13 suppliers offering a range of women’s clothing. Special arrangements are in place to secure the supply of larger sizes.(5) One problem relates to the supplier called Transformation which specialises in those in the transitional stage of gender reassignment. Unfortunately it only offers an online catalogue and prisoners are not permitted to access the internet for obvious security reasons.(6) Make-up may be obtained via the Special Cosmetics Order Form.[27]The particular problem asserted by the claimant is her access to prosthetic items – wigs, breasts and vaginas.[28]Mr Jobling addresses this delicate and difficult issue. He differentiates between the various items in this way: Prosthetic Breast and Vaginas29. Tights30. Tights are prohibited at HMP Frankland as they may be used to provide a ligature, climbing aid and/or as a sieve for brewing. They can be easily concealed and it is impossible to adequately monitor their use.31. Wigs32. The provision of wigs produces a security risk as they provide a very convenient and highly effective disguise if misused in the prison environment. Their effective use in the event of an escape is obvious.

Prosthetic Breast and Vaginas

[29]The Governor has emphasised the security issues in relation to the various items and the fact that he has to consider the wider prison population as well within HMP Frankland. He describes his policy as being “even handed”. He also has to pay close attention to the obvious fact that if the items, that might ordinarily be regarded as acceptable, fell into the hands of other prisoners (not uncommon in prisons) there are plain and obvious security risks.[30]In relation to showers and lavatory facilities the Governor points out it is impossible to provide separate facilities for the very limited number of prisoners in this category. However, a certain level of segregation is permitted whereby the ordinary facilities are made available during association periods when no other prisoners are allowed access.

Claimant’s Argument

[31]The claimant advances a case that the Governor has not complied with the stated policy within PSI 07 in particular Annex B where there is guidance for prisoners living in their acquired gender role. In particular it is asserted that clothing and other items that assist in presenting in their acquired gender are being prevented even though the policy recognises that prostheses and padded bras may be sought. It is accepted the provision of these items may be refused when a security risk is demonstrated that cannot be reasonably mitigated.[32]It is argued that the prohibition of the items (wigs and other prostheses) is being unlawfully prohibited so as to prevent the claimant living in her gender role for a period of two years. As such she is unable to apply for a Gender Recognition Certificate under the 2004 Act. In practical terms no prisoner at HMP Frankland would ever be able to apply for a certificate contrary to the terms of PSI 07 which states in terms – “an establishment must permit prisoners who consider themselves transsexual and wish to begin gender reassignment to live permanently in their acquired gender.” This must, so the argument runs, allow them to dress in female clothes at all times.[33]In support of this the claimant calls attention to the minutes of the Forum and in particular complains:(1) There are real difficulties in obtaining items from the “Girl Gear” list.(2) Purchased goods are returned to the supplier.(3) The claimant is denied access to specialist transgender suppliers.(4) Too many normal items are declined on unjustified security grounds.[34]It is further argued the actuality of the prison breaches the Equality Act 2010.[35]The real complaint absent much detail is that the claimant cannot obtain or is not allowed access to the following: a wig (even though she is bald); an intimate prosthetic; padded bra; tights; concealer make-up; sanitary towels; adequate hair removal products; access to outsize shoe and clothing specialist retailers.

Defendant’s Argument

[36]The Governor reminds me that the court is adjudicating a judicial review claim and not acting as the Prison Ombudsman. The lack of particularity in the claim is emphasised and the difficulty in responding is also called to my attention. Despite these obvious problems, I have no problem in the result in adjudging this claim based upon the policy arguments.[37]The governor puts his defence plainly upon security, good order and discipline. It is averred the claimant is not required to live as a man. She is able to access female items from the canteen list and the special Cosmetic Order Form. Certain suppliers have been simply impossible to access for a prison population – no internet access is allowed to those who only have internet catalogues.[38]The Governor is clear there has been no unlawful prevention of the claimant living in her chosen female role. There has, in reality, only been the prevention of purchasing or obtaining wigs, intimate prostheses and tights. These have been prevented on entirely lawful grounds as the policy permits a security exception. In any event such a departure from stated policy is not in itself unlawful if there is a good reason for doing so: see R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12.[39]The Equality Act 2010 claim is not made out, it is argued, as the comparator is a male prisoner; and male prisoners do not have access to the items a transgender prisoner has access. Consequently, the claimant is actually in a more advantaged position.[40]It will be appreciated I have much abbreviated the submissions of both counsel from their written and oral versions.

Has there been a breach of policy?

[41]In the end I have come to certain simple conclusions having viewed all the evidence in this case and the issue having also been refined somewhat during submissions.[42]It is always vital to remember the claimant is a prisoner and is in a prison where there are serious security issues. The claimant is a Category B prisoner and she is a member of a minority group of prisoners who would, unless appropriate security is maintained, be extremely vulnerable to attack and exploitation by other prisoners. She is also an escape risk herself. The claimant is not an ordinary citizen living her life in the outside every day world in which the remainder of the population exists.[43]There can be no doubt the policy of the Secretary of State for Justice in PSI 07 makes it plain a prisoner must be allowed to live in his or her desired gender role and that certain practical steps have to be taken. There is no question of the Governor in this case compelling the claimant to live as a man. I am also very alive to the intensely practical and overt problem in this case that the claimant is bald and has no access to a wig. Paragraphs 3.2 and 3.3 of PSI 07 are of considerable importance when considering the situation. The italicised portions of PSI 07 are mandatory. However, the structure of the policy document gives much greater leeway when practical matters are being considered. The concept of an individual compact provides a tailored approach to the needs of individual prisoners. This inevitably must mean a level of compromise given the claimant and others like her are prisoners and not free members of society. The Governor is allowed much discretion as to practicalities and, in my judgment, is permitted to place security concerns into the matrix.[44]It is plain the policy permits derogation from the provision of certain female items when security considerations outweigh legitimate transgender objectives. B6 allows items to be prohibited when it can be demonstrated that there is a security risk that cannot be reasonably mitigated and the test to be applied to that question is exactly the same as applied to all other items.[45]Quite apart from the permissible derogation the Governor must maintain good order and discipline under the Prison Rules 1999. Additionally, those rules demand that clothing is clean and tidy and there is also time for education time in the open air and work.[46]It has to be acknowledged there is a restriction upon wearing overtly female clothing when away from the residential wing. This has been explained by the Governor in entirely satisfactory terms – it is for the claimant’s safety and security. This is a prison and the lion’s share of the remainder of the prisoners are not as enlightened as she would wish. She could so easily be the subject of physical and sexual attack, quite apart from ridicule. Of course, the other prisoners should not act like that, but when judging this case one has to be realistic. Prisoners are not always the most enlightened or civilised of individuals – that is, in part, why they are there. Additionally, the governor has to maintain good order in the prison and the sight of a woman (actually a man dressed as a woman) in the parts where the claimant does not reside would be likely to materially affect the good order of other wings in such an obvious way it hardly needs spelling-out. There is an obvious security consideration.[47]In relation to tights there is also a demonstrable security concern. The same applies to intimate prosthetics. With tights it is obvious they can be used for escape purposes and other dangerous illegitimate use. With intimate prosthetics the real issue of hiding items is pronounced. In order to alleviate this, the governor would have to institute regular and repeated intimate searches. This would be justified (albeit very disagreeable for the participants) and to prevent this having to occur, the prohibition of such intimate prosthetics is in my judgment entirely within the security exception. I repeat: this is a prison and hiding items for escape in intimate parts of the body of prisoners is well known to the prison service. Intimate prosthetics plainly comes within the security derogation.[48]The one area that has caused me the greatest concern is the provision of a wig – which at present is banned on security grounds. It is a paradigm of a certain method of escape (perhaps all forms of escape) that disguise is an essential feature. To provide a wig in the prison context is simply providing a hostage to fortune – a plain security risk. However, the outward appearance of an individual is such a core feature of a persons being, that to deny them that feature when transitioning from one sex to another is, it is argued, a fundamental denial of what is being legitimately allowed by PSI 07. The right balance is hard to strike and I do not deny the Governor has a difficult task when a transgender prisoner (as the claimant here) is bald. As was inelegantly, but perhaps accurately, described in the course of argument, the claimant (absent a wig) is being expected to look like a bald drag artiste. When one views the situation in that stark way it is possible to see the real dilemma facing the Governor. On the one hand he has real security concerns and on the other the possible spectre of materially undermining his own policy in PSI 07.[49]The question for the court is whether the implementation of the policy was lawful. For most transgender prisoners it will not be a problem and most will have hair, but for this claimant it is a real problem[50]I have found this aspect of the case to be the one area where I have wrestled the most with what is right. In the end I have come to the conclusion the Governor has acted lawfully. However, in saying that I am convinced a more purposeful solution may need to be searched for. It may be that after much searching for a solution, one cannot be found. That will be for the future. Further work, I feel needs to be done to see if the security risks may be mitigated. At present the no wig policy can be justified.[51]My reasoning as to why the no wig policy is right is based upon security considerations that are justifiable and proportionate. A wig is such a transferable item which could be of immense practical use to a prisoner desirous of escape that to allow its use within a prison defies all semblance of good sense. Frankly, to expand upon this simple proposition is otiose.[52]I am troubled by the difficulty for the claimant in obtaining certain female items from specialist transgender suppliers. I have no doubt that the provision of such items (absent security considerations) is required under PSI 07. To deny the claimant an opportunity to obtain these items (large size clothing and suchlike) has the potential to be contrary to PSI 07.

Departure from policy

[53]Can the Governor justify the lack of provision and what appears to be a departure from what would otherwise be regarded as essential to the policy?[54]The Governor asserts the claimant may access female and unisex items via the canteen list, but specialist transgender suppliers are not possible (albeit it has been investigated) as the one suitable supplier only has an online catalogue.[55]I have no doubt the governor is permitted in law to depart from a policy if there is a good reason for doing so that may be justified in the circumstances of the case. Ordinarily a policy must be followed. The Lumba case makes this clear. A good reason is one for which there is a real need and is a proportionate departure from the policy having regard to all the circumstances and the legitimate aims of the policy. In simple terms the decision maker must view the policy objective and ask himself whether he can justify the departure from the policy as being really needed coupled with it being a proportionate response in all the circumstances. Consideration of all the circumstances means that the policy objective needs to be at the forefront of the decision maker’s mind and it should not be departed from unless there is:(i) a real need and,(ii) the departure is proportionate.[56]The policy statement in PSI 07 means a prisoner may live in the role of the opposite gender if he or she wishes and the governor must take steps to allow this, including clothing. I have no doubt that larger size clothing is frequently needed and that a specialist supplier might be necessary. It must be remembered that in order to get a Gender Recognition Certificate the prisoner (any person) has to live as a person of their chosen gender for two years. Consequently, although the Governor has all sorts of worthy principled statements; the simple fact is the claimant has no access to female attire of the kind needed because she has no access to specialist suppliers of outsize transgender female attire.[57]I am also satisfied the changing room problem is being proportionately managed by the Governor. No one is compelling the claimant to live as a man by expecting her to use the shower facilities when other prisoners are elsewhere.[58]I am satisfied the explanation given by the Governor at present is satisfactory, but a longer term solution needs to be found. The departure from policy (and I am satisfied this is a departure from policy) is needed and is proportionate. It is needed and proportionate because the prisoners are not allowed access to the internet on security grounds and the supplier only advertises its wares on the internet. To prevent access to the web-site is needed on security grounds and it is also an entirely proportionate stand at present. It is legitimate at present, but a longer term solution has to be found or the policy (and it appears to be a very enlightened and good policy) will simply become a pious list of worthy hopes with no practical application.[59]I have come to the conclusion that the response of the Governor to the claim is fully made out. The various heads of claim are not well founded, but there may come a time in the future where the wig issue and the outsize clothing issue will not be so easily rebutted. I have no doubt there are really pressing security issues in the prison population and the prison estate. I do not underestimate those at all. They are, after all, one of the primary concerns of the Secretary of State and the prison service as a whole.[60]In the context of this case I am convinced the Governor has not prevented the claimant living in her chosen gender. There are matters to address for the future, but that is not a legitimate issue for this court in this claim. I am also of the view that these matters would be much better addressed to the Prison Ombudsman rather than the Administrative Court.[61]In making this decision I am very conscious the claimant may have an uphill struggle to achieve a Gender Recognition Certificate whilst in custody as a Category B prisoner – particularly so absent a wig. That is a source of acute discomfort for the claimant, but there are wider considerations in this case than that. In my judgment security prevails in the context of decision making in a prison. In this case I am of the view the Governor has done his best to accommodate the claimant. Certain problems need to be addressed to see if there is a solution – over wigs and outsize clothes – but that is for the future. There may be a solution; or there may not.[62]The grounds relating to breach of policy all fail.

Discrimination under the Equality Act 2010

[63]The question under this part of the claim is whether the Governor has treated the claimant less favourably than he would treat others in the exercise of his public function?[64]This aspect of the case was not argued at length as greater reliance was placed on the grounds I have already covered. I believe I can dispose of this part of the case quite quickly.[65]This is a direct discrimination claim under section 13(1) of the Equality Act 2010 and, as the Governor is exercising a public function, section 29(6) engages.[66]A comparator has to be found in order for there to be discrimination or for the claimant to show she has had less favourable treatment. The claimant asserts the comparator should be a female prisoner; whereas the governor contends it should be a male prisoner. There can be no doubt the claimant has a protected characteristic – gender reassignment. The claimant is, however, male. The only possible comparator is to a male prisoner who is not undergoing gender reassignment.[67]It seems to me that I must approach the discrimination issues in this way:(1) Has the claimant been treated less favourably by the Governor than he would treat others in the exercise of his public function?(2) If he has so treated the claimant, was this due to the claimant’s gender reassignment?[68]Frankly, it is almost beyond argument that the only comparator is a male Category B prisoner at HMP Frankland. I am influenced by the judgment of the Court of Appeal in Croft v Royal Mail Group PLC [2003] EWCA (Civ) 1045. I find it impossible to see how a female prisoner can be regarded as the appropriate comparator. The claimant is a man seeking to become a woman – but he is still of the male gender and a male prisoner. He is in a male prison and until there is a Gender Recognition Certificate, he remains male. A woman prisoner cannot conceivably be the comparator as the woman prisoner has (either by birth or election) achieved what the claimant wishes. Male to female transsexuals are not automatically entitled to the same treatment as women – until they become women.[69]A male prisoner (who wishes to remain male as most do) does not need to express his gender identity in any purposeful way. He does so innately through the male clothes he wears and certainly does so via prison clothing. Transsexual prisoners are treated differently (and wish to be so) and as such have a number of advantages in terms of clothing and lifestyle not available to the remainder of the male prison population absent privileges.[70]I have no hesitation in saying the correct comparator is a male prisoner in Category B at HMP Frankland. I am utterly unconvinced that the claimant has been treated less favourably than such a prisoner – indeed the reverse. Consequently, the second question I posed does not arise.[71]This aspect of the judicial review claim is misconceived.

Conclusion

[72]This claim fails on all grounds.[73]I trust that a solution will be found to the areas of legitimate concern for the claimant about wigs and outsize clothing. It is a debate that will need to be had and it may be that a solution will not be entirely satisfactory. It may not be possible to surmount the security obstacles which must be at the forefront of the Governor’s assessment.[74]At present the Governor has complied with the policy and where he has departed from it, he has done so for entirely good reasons. PSI 07 is a sensible and workable policy document seeking to strike the right balance between legitimate desires of the transsexual prison population and the real security concerns of the Secretary of State and individual prison governors. It is a difficult balance to strike and it will not always be possible to do that which is possible outside prison. In this case the Governor has struck the right balance, but needs to keep matters under review as I believe he will.[75]This claim for judicial review is dismissed.

Cited in 1 later judgment