Are 50% of Trans Women in Prison Sex Offenders?
The transphobic myth that refuses to die
Are trans women more likely to be sex offenders, and is that an issue for women’s prisons?
These are two of the big ‘reasonable questions’ in the ‘debate’ around transgender recognition and, relatedly, the rights of transgender prisoners.
The claims (I say ‘claim’, but really they’re transphobic dog-whistles, for reasons I’ll explain shortly) are often made by anti-trans activists and the broadly transphobic mainstream media.
J.K. Rowling recently tweeted out the idea that trans women maintain a ‘male pattern of criminality’, and the idea that trans women are more likely to be sex offenders has been covered in one way or another by various mainstream media outlets, such as (to no one’s surprise) the BBC, the Daily Mail and The Spectator.
I recently saw these claims pop up in online comment sections in relation to the current debate around Scottish gender recognition reforms – which prompted me to write this piece. I’m not the first to debunk these ideas, but since they refuse to die, it’s worth doing it again.
“50% of trans women prisoners are sex offenders”
The first question is actually less of a question and is usually just stated as a ‘fact’: 50% of trans women in prison are there for committing sexual offences (or 58%, 41%, or 60%, depending on the source of the claim.
Many (possibly all) of these claims originate with successive analyses by the organisation Fair Play for Women (FPFW), which they’ve published on their website for several years in a row. The problem is they use unreliable figures to draw a false conclusion (one that just happens to confirm their existing bias).
Their analyses are based on Ministry of Justice (MOJ) data from several different years. For example, their analysis of the data for 2017/2018 says that there were 129 trans women prisoners in England and Wales. Of those 129, 76 (58.9%) were serving sentences for sexual offences, compared to 3.3% of cis women and 16.8% of cis men.
From one of these analyses they conclude that:
“If we were to believe that trans sex offending was more like the female figures (of 3%) then there would have to be an extra 1875 ‘hidden’ transgender prisoners. There is no evidence* to suggest this is the case.”
(*there is, I’ll get to that)
FPFW have come up with similar numbers, usually around the 50% mark, based on a similar process of comparing statistics for cis and transgender prisoners for different years.
These figures have been uncritically quoted by various major media outlets, as well as featured in a parliamentary submission by, among others, arch-transphobe Kathleen Stock, which was potentially part of the ‘evidence’ which influenced the U.K. government to drop planned gender recognition reforms (though really it could just have been opportunistic transphobia on the part of the Tory government).
These figures are incredibly misleading for a few reasons.
For one, FPFW state that these figures are based on all trans women who self-identify as trans and are currently in prison in England and Wales, which is untrue. According to the analysis of FPFW’s figures for 2018/2019 by the charity Bent Bars:
[T]he overall number of trans prisoners includes only “prisoners who are currently living in, or are presenting in a gender different to their sex assigned at birth and who have had a case conference.” This means that anyone who had not requested a case conference would not be included in those figures.
- Bent Bars, Trans Prisoners Info Sheet #2, page 12
Only prisoners who have been given long-term sentences, for example, those who have committed serious sexual offences, are likely to request a case conference, according to the MOJ. So this figure will, of course, contain a high number of sex offenders while missing most other trans women serving shorter sentences for less serious offences.
Bent Bars go on to highlight that prisoner surveys, which measure the number of trans prisoners through self-reporting (not just those who had requested a case conference), find the likely number of trans inmates to be much higher:
The Prison Inspectorate’s 2018–19 report found in prisoner surveys that 1% of prisoners in prisons designated for women, and 2% of prisoners in prisons designated for men say they are transgender… it would indicate that a much greater overall number of trans prisoners were being held in prison than is officially recorded (i.e. as many as 1600 prisoners rather than 125). This would mean that the proportion of trans people held for sexual offences would be much smaller and potentially as low as 4%.
- Bent Bars, Trans Prisoners Info Sheet #2, page 12
Therefore, if we used these figures the number of trans women serving sentences for sexual offences could be around the same as cis women: approximately 4% and 3.3% (or 4% according to 2017 figures), respectively. That’s nowhere near the 17% of cis men serving sentences for sexual offences – though some of those 1600 could also be serving sentences for sexual offences, but haven’t requested a case conference.
The point is that we don’t have reliable figures for how many trans women are in prison, and any analysis is going to vary greatly based on that actual figure. As Bent Bars also highlight, people of certain groups are more or less likely to face scrutiny and conviction for the same crimes and so conviction rates don’t necessarily represent the rate of actual crimes being committed in society.
The claim that 50% of trans women prisoners are sex offenders is utterly untrue – there has never been any good evidence to support it. It has been debunked repeatedly, but certain people keep using it because it’s a handy transphobic dog whistle that can be posed as a ‘reasonable concern’ while perpetuating transphobic stereotypes.
The irony is that in one of their ‘analyses, ’ FPFW actually provided an update (several years after posting the original article) and link to the same Bent Bars factsheet I have – but they do so right at the bottom of their article, and well after the claim has been repeated ad nauseam by the mainstream media and the damage has been done (with not a single retraction in sight).
“Trans women sex offenders placed in women’s prisons are a risk”
The second question, or claim, is much easier to debunk – no statistics are needed. Just a very basic bit of research into Ministry of Justice policies around trans prisoners and prisoners detained for sexual offences (research that, apparently, politicians, ‘gender critical’ academics, and mainstream journalists are incapable of doing – or, more likely, have chosen to ignore).
Any trans woman being accommodated within a female prison is subject to risk assessment, the same as any other prisoner:
“[W]here a transgender woman with a GRC is placed in the women’s estate, all known or likely risks she may pose to other women in the estate should be managed, with use of separate accommodation where appropriate.”
- MOJ, The Care and Management of Individuals who are Transgender
It’s often implied in media reporting that trans women sentenced for sexual offences are placed in the general population in a women’s prison without regard for the safety of others, but that is not the case.
Specific ‘Local Transgender Case Boards’ are held for every trans prisoner being accommodated according to their affirmed gender, regardless of their offence. These Boards consider offence type, past behaviour, risk behaviours, mental health, physical characteristics (including strength and genitalia), disability, medication and several other aspects of an individual’s history and situation as they relate to the potential for harm, both to and by the prisoner. The MOJ take this pretty seriously.
Secondly, sex offenders in U.K. prisons are classed as a vulnerable group – because other prisoners tend to target them for violence.
As a result, they are often placed in separate ‘Vulnerable Prisoner Units’ and this applies to men and women (trans or cis) who have committed sexual offences.
So overall, given the risk assessment and accommodation policies in place, the likelihood that a sexual offender, trans or otherwise, would be placed with other prisoners where there was a risk of harm to others or themselves is extremely unlikely. The question of trans women sex offenders being a risk to other women is a non-issue.
Despite this, Brandon Lewis, the U.K. Secretary for Justice, has announced plans to ban trans women who haven’t had gender reassignment surgery from being accommodated in women’s prisons. Because only people with a penis can commit rape, obviously (no, really, in U.K. law, the offence of rape can only be committed by someone with a penis. I’m not making that up).
Undying myths and un-asked questions
Despite being provably false, the idea that trans women are more likely to be sex offenders or that trans women retain a ‘male pattern of criminality’ to that of cis men will likely continue to dominate the debate around trans rights. Once a sensationalist claim like this enters the public discourse, especially when it relates to an already demonised minority (and seems to justify people’s irrational prejudice), it’s hard to kill, regardless of its veracity.
One thing that strikes me as particularly problematic, though, is the questions not being asked about women and prisons.
Questions like: why are we even putting people in prison if they aren’t a risk to others?
Locking up people for minor, non-violent and non-sexual crimes when they aren’t a risk to others is pointless, costly, and harmful to individuals, their families and the community. It doesn’t benefit anyone. The idea of prison purely for the sake of ‘punishment’ borders on the medieval (and obviously doesn’t deter crime, anyway).
Prison is an especially harmful place for women: women prisoners have much higher rates of mental illness going into prison and experience more mental health issues as a result of being in prison. They are much more likely to have been victims of abuse as well.
Women are also much more likely to be in prison for ‘crimes of survival’ – shoplifting, theft, minor fraud, prostitution, property crimes and drug-related crimes, reflecting the unequal impact of poverty on women and their motivation (or need) to commit certain types of crime. Is that justice?
The fact that groups like Fair Play for Women, individuals like Kathleen Stock, or any of the right-wing media outlets that repeat their lies about trans women, make a big deal about the nonexistent risk that trans women pose to women in prisons is interesting, given that this seems to be the only time they care about those women.
It’s almost as if they don’t actually care, but they’re just exploiting a voiceless, marginalised minority as an excuse to attack trans women.