Male prisoners are currently in women’s prisons. Even those those convicted of child sexual offences and violent and sexual crimes against women. They are there because the Ministry of Justice says they have the right to be there — because they identify as transgender.

At the beginning of this month, judgement was handed down in the High Court in R (RDJ) v Secretary of State for Justice. This judicial review had been brought by FDJ, a female prisoner who reported she had been sexually assaulted by a male prisoner who identifies as transgender and who has a Gender Recognition Certificate. This male prisoner had been convicted of serious sexual offences against women and was held with FDJ in a women’s prison. FDJ challenged the lawfulness of the prison policies that provide for the allocation of male prisoners who identify as transgender to the female prison estate, on the grounds that these misstate the law and unlawfully discriminate against women.

Many female offenders are often the victims of crimes far more serious that the ones for which they were convicted

To the surprise and disappointment of many, the court ruled in favour of the Secretary of State for Justice that the policies are capable of being operated lawfully and that the inclusion of (at least some) male prisoners, including both those who have convictions for sexual offences against women and those who have intact male genitalia, is not unlawful.

It wasn’t that the testimony of FDJ was disbelieved, nor that the vulnerability of women in prison was seen as irrelevant. Many female offenders have experienced considerable violence throughout their lives and are often the victims of crimes far more serious that the ones for which they were convicted. As Lord Justice Holroyde wrote at paragraph 76, “I fully understand the concerns advanced on behalf of the Claimant. Many people may think it incongruous and inappropriate that a prisoner of male physique and with male genitalia should be accommodated in a female prison in any circumstances.” The judgement acknowledged the fear and anxiety that women in prison may suffer if required to share accommodation with any male prisoner, not just those convicted of sexual or violent offences against women.

Nevertheless, the negative impact on women was not perceived as significant or important enough to outweigh the desire of some male prisoners to share accommodation with women. The emails I have received over the last few weeks indicate that I am not alone in finding this quite shocking. I do not see how what amounts to an unofficial punishment against women in prison can constitute anything other than a breach of female inmates’ Article 3 rights not to be subjected to inhuman or degrading treatment or punishment.

The operation of these policies is also an unofficial privilege awarded to a cohort of male prisoners. While no woman, and the vast majority of men, are unable to choose the prison in which they serve their sentence nor whom they serve their sentence with, some male prisoners who identify as transgender can. In some cases these preferences will be met. However, the judgement referred to evidence that proves the prison service is able to meet the legitimate needs of male prisoners who identify as transgender in the male estate: as of  2019, there were 129 of them held in men’s prisons. Why then do any males need to be allowed to share accommodation with women?

Why then do any males need to be allowed to share accommodation with women?

None of this is new: male prisoners have been held in the female estate since at least the 1980s. As Professor Michael Biggs sets out in The Transition from Sex to Gender in English Prisons: the criteria that permitted a male prisoner have been housed in the female estate have changed over the decades; what hasn’t changed is that the dignity, privacy and safety, the very reasons why single-sex spaces for women exist, are seen as secondary to male desire for self-actualisation. It wasn’t right then and it’s not right now.

The judgement contained a positive statement: the judges were clear that the court had been called upon to decide on the lawfulness of the policies, not their desirability. This is key. If it is lawful to house male prisoners convicted of rape alongside women who are the victims of sexual assault, the law must change. In recent months we have also discovered that changes to the protocol on searching prisoners could allow male officers who identify as transgender to strip search female offenders. Only last week, we discovered that Youth Custody Services may now be run as mixed-sex facilities with girls and boys held together.

What is lawful is not necessarily desirable. If policy leaves women and girls at risk and the courts do not protect them, Parliament must act. A growing number of MPs and peers actively support us in protecting the sex-based rights of women in prison. Women and girls in prison need us — now more than ever. If we cannot get it right for some of the most vulnerable women in society, who can we get it right for?