Green, R (on the application of) v Secretary of State for Justice

Factual and Procedural Background

This case concerns a serving prisoner (the claimant) who seeks to challenge decisions made by the Governor of a maximum security prison (the defendant) regarding her rights and treatment as a transgender prisoner. The claimant, born male and convicted of serious offences, wishes to live permanently in her acquired female gender role while incarcerated. The dispute arises from the Governor's management of the claimant's requests for gender-affirming items and accommodations under the prison policy PSI 07/2011, which governs the care and management of transgender prisoners. The claimant alleges unlawful discrimination and breach of this policy. The case is heard within the context of the security and order requirements of a Category B prison, where the claimant is housed among other vulnerable prisoners. The court must consider the balance between the claimant’s rights to live in her acquired gender and the prison’s legitimate security concerns.

Legal Issues Presented

1. Whether the Governor has breached the Secretary of State’s policy (PSI 07/2011) concerning the care and management of transgender prisoners by restricting access to certain gender-affirming items and accommodations.
2. Whether any such breach is justified by legitimate security concerns and is proportionate.
3. Whether the claimant has been unlawfully discriminated against under the Equality Act 2010 by being treated less favourably than comparable prisoners.
4. What is the appropriate comparator for the discrimination claim under the Equality Act 2010.

Arguments of the Parties

Claimant's Arguments

• The Governor has failed to comply with PSI 07/2011, particularly Annex B, by unlawfully restricting access to female clothing and prosthetic items necessary for the claimant to live in her acquired gender role.
• The prohibition on wigs, intimate prosthetics, and other items unlawfully prevents the claimant from living in her gender role for the required two-year period needed to apply for a Gender Recognition Certificate.
• There are practical difficulties in obtaining items from the "Girl Gear" list, with purchased goods often returned and denial of access to specialist transgender suppliers.
• The claimant asserts that these restrictions amount to unlawful discrimination under the Equality Act 2010.
• The claimant lacks access to wigs despite baldness, intimate prosthetics, padded bras, tights, concealer make-up, sanitary towels, adequate hair removal products, and specialist outsize shoe and clothing retailers.

Defendant's Arguments

• The court is conducting a judicial review, not acting as a Prison Ombudsman, and the claimant’s lack of particularity complicates the claim.
• The Governor has acted lawfully and in accordance with policy, with no unlawful prevention of the claimant living in her chosen gender role.
• Restrictions on wigs, intimate prosthetics, and tights are justified on lawful security grounds permitted by PSI 07/2011’s security exceptions.
• The claimant is able to access female items from the canteen and special cosmetic order forms, although some specialist suppliers cannot be accessed due to prison security prohibiting internet access.
• The Equality Act claim fails as the correct comparator is a male prisoner, and the claimant is arguably in a more favourable position than such prisoners.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the claimant’s protected characteristic of gender reassignment and the importance of PSI 07/2011 in guiding the treatment of transgender prisoners. It emphasized the prison context, including security concerns and the vulnerability of transgender prisoners within a male Category B prison. The court recognized that while the policy mandates allowing prisoners to live permanently in their acquired gender role, it also permits exceptions where security risks cannot be reasonably mitigated.

The Governor’s restrictions on wigs, intimate prosthetics, and tights were found to be justified on security grounds: wigs pose a disguise risk facilitating escape; intimate prosthetics could conceal contraband necessitating invasive searches; tights could be used for dangerous purposes. These security concerns were deemed proportionate and lawful exceptions under the policy.

The court accepted that the Governor has discretion to depart from the policy when justified by security and operational needs, applying the test from R (Lumba). Although the claimant’s inability to access specialist transgender suppliers due to internet restrictions constitutes a departure from policy, the court found this justified and proportionate given the security context, while noting the need to seek longer-term solutions.

Regarding discrimination, the court held that the appropriate comparator is a male prisoner not undergoing gender reassignment. Since transgender prisoners receive certain privileges not afforded to other male prisoners, the claimant was not treated less favourably. Therefore, the direct discrimination claim under the Equality Act 2010 failed.

The court expressed sympathy for the claimant’s difficulties, particularly relating to the denial of a wig, but concluded that the Governor struck the right balance between individual rights and prison security. The court emphasized the need for ongoing review and potential future solutions but found no current illegality.

Holding and Implications

The court’s final decision is: DISMISSED.

The claim for judicial review fails on all grounds. The Governor’s actions, including departures from PSI 07/2011, are lawful and proportionate given the security requirements of the prison environment. The claimant is not unlawfully discriminated against under the Equality Act 2010. The decision confirms that prison security considerations can justify certain restrictions on transgender prisoners’ access to gender-affirming items, even when these restrictions impact the claimant’s ability to fully live in her acquired gender role.

No new precedent is established beyond affirming the application of existing principles balancing prisoner rights and security. The court encourages the Governor and prison authorities to seek practical solutions to outstanding issues, such as wig provision and access to specialist suppliers, but recognizes these remain matters for prison administration rather than judicial intervention at this stage.