FDJ, R (On the Application Of) v Secretary of State for Justice

Factual and Procedural Background

The Claimant challenges the lawfulness of the Defendant's policies concerning the care and management of transgender individuals within the prison estate, specifically the allocation of transgender women convicted of sexual or violent offences against women to women's prisons. The Claimant served a prison sentence from October 2016 to June 2020 and alleges that in August 2017, while at a privately-managed women's prison, she was sexually assaulted by a transgender woman prisoner with a Gender Recognition Certificate ("GRC"). The Defendant makes no admission regarding the alleged assault.

The Claimant does not oppose the allocation of transgender women who are not violent or sexual predators to women's prisons but expresses concern about the risks posed by those with convictions for sexual offences against women. Another woman prisoner provided a statement expressing similar concerns.

The case focuses on the Defendant’s Care and Management Policy and the policy governing a specialist unit ("E Wing") for high-risk transgender prisoners at a public women's prison. The Claimant seeks a declaration that these policies are unlawful.

Legal Issues Presented

1. Whether the Defendant's policies indirectly discriminate against women prisoners contrary to Article 14 of the European Convention on Human Rights (ECHR) read with Articles 3 and/or 8, and contrary to section 19 of the Equality Act 2010.
2. Whether the Defendant failed to take into account material considerations, specifically the single-sex exemptions under the Equality Act 2010, rendering the policies unlawful by misstating the law.

Arguments of the Parties

Appellant's Arguments

• The policies expose women prisoners to a greater risk of sexual assault than would exist without transgender women convicted of such offences being allocated to women's prisons, engaging Articles 3, 8, and 14 ECHR and section 19 of the Equality Act 2010.
• The Defendant’s own statistics show a high proportion of transgender prisoners have convictions for sexual offences, increasing risk to women prisoners who are a vulnerable group with prevalent histories of abuse.
• The policies fail to properly consider the single-sex exemptions in the Equality Act 2010 and impose a threshold of “exceptionality” rather than “proportionality” for excluding high-risk transgender women from the female estate.
• The policies lack consultation with stakeholders and do not comply with the Public Sector Equality Duty (PSED).
• The E Wing Policy does not effectively segregate high-risk transgender women as some have participated without supervision in activities with the general prison population.
• Less intrusive alternatives exist, such as incorporating proportionality tests or presumptions against placing high-risk transgender women in the female estate.
• The policies amount to a provision, criterion or practice (PCP) that indirectly discriminates against women, and the Defendant cannot justify this under the Equality Act 2010.
• Under Ground 2, the policies erroneously state the law by not reflecting single-sex exemptions, contrary to the Gillick principle, and misrepresent the balance Parliament intended between transgender rights and single-sex provisions.

Respondent's Arguments

• The Minister approving the policies was aware of the single-sex exemptions, and a fresh decision was made to address concerns about legal privilege and to ensure proper consideration.
• The policies adopt a fact-sensitive, balanced approach to managing competing rights and interests in a difficult area, with risk assessments on a case-by-case basis.
• The Claimant’s challenge is too broad and unclear regarding which aspects of the policies are contested.
• The number of sexual assaults by transgender prisoners is very low, and since the Care and Management Policy came into effect, no sexual assaults by transgender women without a GRC have been recorded in the female estate.
• The policies do not engage Articles 3 or 8 ECHR substantively, and any differential treatment is justified as proportionate to legitimate aims of safety and welfare.
• The single-sex exemptions are permissive and not mandatory; the Defendant is not obliged to apply them in any specific case.
• The policies do not constitute a statement of law but provide practical guidance on policy implementation.
• The Defendant contends that the Claimant has not suffered any particular disadvantage or adverse impact under the policies.

Intervener's Arguments

• The Intervener cautioned against reliance on statistical claims about the prevalence of sexual offending by transgender prisoners due to unreliable data and under-reporting.
• There is uncertainty about the number of transgender prisoners and their offending history, undermining generalised claims about risk.

Claimant's Response to Intervener

• The Claimant, relying on expert evidence, contends that although total transgender prisoner numbers are unknown, the known population shows over 50% have convictions for sexual offences, indicating a significant risk.
• A history of sexual offending is an indicator of future risk, supporting the Claimant’s case that transfer of transgender women prisoners into the female estate increases risk to women prisoners.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Elan-Cane) v Secretary of State for the Home Department [2018] EWHC 1530 (Admin)	Clarification of the distinction between "sex" and "gender" for legal purposes.	Adopted the distinction in interpreting the policies and terminology used.
Carson v UK (2010) 51 EHRR 369	Framework for establishing discrimination under Article 14 ECHR.	Applied to assess whether policies indirectly discriminate against women prisoners.
R (SG) v Secretary of State for Work and Pensions [2015] 1 WLR 1449	Criteria for Article 14 discrimination claims and proportionality assessment.	Used to evaluate the legitimacy and proportionality of the Defendant’s policies.
In re McLaughlin [2018] UKSC 48, [2018] 1 WLR 4250	Recognition that increased risk of Article 3 ill-treatment engages Convention rights.	Accepted that increased risk of sexual assault is within the ambit of Article 3.
Stevenson v Secretary of State for Work and Pensions [2017] EWCA Civ 2123	Threshold for engaging Article 3 through risk of ill-treatment.	Supported the conclusion that increased risk can engage Article 3.
R (SC) v Secretary of State for Work and Pensions [2019] 1 WLR 5687	Application of Article 3 and 14 in discrimination claims involving risk.	Referenced in relation to risk of mistreatment and discrimination.
R (Akbar) v Secretary of State for Justice [2020] HRLR 3	Requirement to show adverse impact for Article 14 claims based on negative obligations.	Applied to assess whether Claimant suffered adverse impact under policies.
R (B) v Secretary of State for Justice [2010] 2 All ER 151	Consideration of transgender prisoner rights and allocation decisions.	Referenced to illustrate balancing of rights and risks in prison allocation.
Strbac v Secretary of State for the Home Department [2005] EWCA Civ 848	Limits on combined Article 3 and 14 claims without substantive Article 3 breach.	Used to reject claim that absence of substantive Article 3 breach precludes Article 14 claim.
R (Tabbakh) v Staffordshire and West Midlands Probation Trust [2014] I WLR 4620	Policy unlawfulness if it leads to unlawful acts or decisions.	Referenced in Ground 2 argument about policies misstating the law.
Gillick v West Norfolk and Wisbech Health Authority [1986] AC 112	Court’s jurisdiction to correct erroneous legal advice in government publications.	Considered in relation to whether policies misstate the law and warrant correction.
R (Gill) v Secretary of State for Justice [2010] EWHC 364 (Admin)	Allocation of prisoners as provision of a public service within Equality Act scope.	Accepted that prisoner allocation engages Equality Act provisions.
R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] 1 WLR 3280	Four-stage test for justification of differential treatment under discrimination law.	Applied to assess justification of the policies under Article 14 and Equality Act.

Court's Reasoning and Analysis

The court acknowledged the complexity and sensitivity of the issues, emphasizing that the challenge is to the lawfulness of the policies as a whole, not to their application in individual cases. It accepted that the Claimant’s concerns about risk and vulnerability of women prisoners are legitimate and that sexual assault may engage Article 3 rights. The court also accepted that the presence of transgender women in women's prisons may increase risk to non-transgender women, but this must be viewed in the context of the policies’ requirement for detailed, case-by-case risk assessments.

The policies mandate initial allocation based on legally recognised gender, with exceptions requiring approval by expert multi-disciplinary boards (Local and Complex Case Boards) who consider a comprehensive list of risk factors related to both the transgender individual and other prisoners. The court found that these Boards are well placed to balance competing rights and manage risks appropriately.

The court found the statistical evidence limited and insufficient to support broad conclusions about risk differentials. It rejected the Claimant’s contention that the policies apply an unlawful “exceptionality” test rather than a proportionality test, noting the policies’ repeated emphasis on balancing risks and managing safety.

Regarding the Equality Act 2010 exemptions for single-sex services and accommodation, the court held that the minister was fully advised of these exemptions and that the Defendant was not obliged to apply them in any particular case. The policies’ risk assessment framework substantially overlaps with the considerations relevant to these exemptions.

On Ground 2, the court found the policies are not statements of law but practical guidance documents, and therefore the Gillick principle for correcting erroneous legal advice does not apply. The court declined to declare the policies unlawful on this basis.

Overall, the court concluded that the policies are capable of lawful operation and do not unjustifiably interfere with the rights of women prisoners. Individual decisions under the policies may be challengeable, but that does not render the policies themselves unlawful.

The court also noted concerns about the accuracy and completeness of data on transgender prisoners, particularly regarding those with GRCs, but found this issue did not affect the legality of the policies.

Holding and Implications

The court’s final decision is to DISMISS the Claimant’s challenge to the Defendant’s policies relating to the care and management of transgender prisoners and the operation of the specialist unit for high-risk transgender women.

The direct effect of this decision is that the challenged policies remain lawful and may continue to be applied. The judgment recognises the sensitive balancing of competing rights and interests inherent in the policies, allowing for case-by-case risk assessments and management. No new precedent altering the law on transgender prisoner allocation or discrimination law is established by this decision.