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160155491.Pdf This work is protected by copyright and other intellectual property rights and duplication or sale of all or part is not permitted, except that material may be duplicated by you for research, private study, criticism/review or educational purposes. Electronic or print copies are for your own personal, non- commercial use and shall not be passed to any other individual. No quotation may be published without proper acknowledgement. For any other use, or to quote extensively from the work, permission must be obtained from the copyright holder/s. Transgender prisoners: law, prison administration, and the emerging tension between human rights and risk Robyn Emerton Submitted in satisfaction of a Doctor of Philosophy in Law July 2018 Keele University BD-#31252501-v1 Abstract Through the figure of the transgender prisoner, this thesis examines both the transformative potential, and the limits, of law and human rights, in redrawing the lines of sex/gender and expanding the possibilities and liveability of transgender lives. The prison, with its sex-segregated estate and binary gender society/regime, is a particularly useful site to examine how transgender people and their bodies are problematised in broader society. It magnifies the challenges faced by law and human rights in attempting to alter certain historically entrenched “truths” about sex/gender and transgender people. Drawing on post-Foucauldian legal scholarship, queer, feminist and transgender literature, and risk theory, the thesis examines the impact of recent human rights-based legal developments on English and Welsh prison policy, and considers the potential of human rights discourse to alter the prison administration’s governance of sex/gender, as it relates to transgender prisoners. It focuses on three areas: prison allocation and segregation, gender presentation and access to medical treatment. The thesis identifies an emerging tension between human rights and risk in the prison’s construction and governance of transgender prisoners. It reflects on a particularly deeply-entrenched anxiety about the gender authenticity and bodies of transgender women prisoners, especially those who transition whilst in prison and wish to transfer to the female estate. It concludes by arguing that there are certain inescapable “truths” that society cannot seem to get beyond, and that, whatever law and policy say, both bodies and normative gender performance still matter in cultural and institutional constructions of “authentic” gender and risk. BD-#31252501-v1 i Acknowledgements I would like to start by thanking my supervisors, Alex Sharpe and Mary Corcoran, for their encouragement, support and guidance throughout the PhD process, and for challenging me and pushing me to think outside my usual “box”. I still have much to learn, but am very grateful for the opportunity to have read so widely, and to have pushed my horizons beyond traditional legal research. Thank you to Alex for encouraging me to pursue a PhD after so many years of deliberation and to the Arts and Humanities Research Council for generously funding my studies. I would also like to thank Fabienne Emmerich, whose seminar on transgender prisoners inspired my PhD proposal, and Stella Coyle, Mia Harris, and Eka Iakobishvili for their friendship and the very special type of understanding and support that can only come from those sharing in the many trials and tribulations of the PhD process. I am grateful to the many people who so kindly gave me their time and shared their insights into the issues facing transgender prisoners in the English and Welsh prison system, in particular Stephen Whittle and Fiona Simkiss of Press for Change, and Jane Ryan of Bhatt Murphy Solicitors, for continuing our conversations and information-sharing beyond the initial interviews, Deborah Russo of the Prisoners Advice Service, Francesca Cooney, formerly of the Prison Reform Trust, Bernard Reed of GIRES, Joanne Roberts at Only Connect,1 and James Barrett, Charing Cross Gender Identity Clinic. Tara Hudson’s tireless campaigning, which has brought much-needed visibility to the issues facing transgender prisoners housed in prisons inappropriate to their gender, was an inspiration along the way, 1 Name changed. BD-#31252501-v1 ii whilst attending Vikki Thompson’s inquest was a harsh reminder of the urgency of the need for change. Thank you also to Jamie Bennett, Governor of HMP Grendon, Sarrah Disspain, HMP Send, and Alisa Stevens, Southampton University, for helping me explore the possibility of interviewing transgender prisoners, even though I did not subsequently pursue this option, to the librarians at the Prison Service College Library, staff at the Lesbian and Gay Newspaper Archives for helping me dig out historical material, to Stephen Whittle (again), Aaron Devor and Richard Elkins for trying to help me locate the original, 1996, draft policy on transgender prisoners, and to Ivan Crozier for kindly meeting with me to discuss my historical research (unfortunately much truncated in the final version of the thesis!). Thank you also to Aeyal Gross for information on the Israeli Supreme Court judgment referred to in this thesis and to Maya Barr for translating it into English for me. It is impossible to name everyone, but thank you all for your help, both big and small. A big thank you also goes to staff and students at the Queen Mary University “Thinking Writing” thesis-writing “boot camps” for keeping me going when the going got really tough, and in particular for the gold star which I earned for deleting 10,000 words from my thesis, whilst everyone else was working towards writing 10,000 words. As Alex astutely observed, it took me a while to understand that I only needed to write one thesis, not three. I also could not have done without the wonderfully supportive environment at Gladstone’s Library, Hawarden, where I spent several productive weeks finalising the thesis in the run-up to Christmas. It is a very special place. I owe my friend Naomi Chapman for recommending it to me, and my friends and family for enabling me to leave everything else behind, and to immerse myself in my thesis without worrying about lifts and what to get the children for BD-#31252501-v1 iii tea. Georgie and Meghan’s care and support during my stay was truly heart-warming, as were Peter’s wonderful stories. Last, but by no means least, a huge thank you to my husband, Andrew, my children, Gabriel, Sebastian and Sylvia, my parents, Gill and Brian, and my friends, particularly Jess, for their unerring support – both emotional and practical – and encouragement, through thick and thin. I can’t really thank you enough – although perhaps the fact that I have finally finished my PhD and will be graduating this summer will do! BD-#31252501-v1 iv Contents Abstract ............................................................................................................................ i Acknowledgements .......................................................................................................... ii Table of Cases ............................................................................................................... viii List of Abbreviations ........................................................................................................ xi Introduction: Setting the Scene......................................................................................... 1 The Contemporary Socio-Political Landscape ........................................................................ 6 Core Aims of the Thesis ........................................................................................................ 17 Contribution to the Literature ............................................................................................. 23 Methodology and Research Sources .................................................................................... 32 Structure of the Thesis and Chapter Outlines ...................................................................... 39 Chapter 1: A Brief History of the Legal and Medical Regulation of Gender Non-Conforming People ............................................................................................................................ 46 Law’s Regulation of Sexual and Gender “Deviance” ............................................................ 48 The Science of Sexology, the “Sexual Invert”, the “Homosexual”, and the Prison ............. 55 The Medical Naming and Pathologisation of the “Transsexual” ......................................... 62 Corbett and the first “Transsexual of Law” .......................................................................... 66 Conclusion ............................................................................................................................ 70 Chapter 2: Three Theoretical Pillars: Law, Gender, and Risk ............................................ 72 Foucault’s Core Concepts ..................................................................................................... 74 Post-Foucauldian Legal Scholarship on the Power of Law ................................................... 82 Theory around the Construction, Performativity, and Embodiment of Gender ............... 101 Prison Governance, Risk and the Transgender Prisoner .................................................... 116 Conclusion .......................................................................................................................... 132 Chapter 3: The Emergence
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