Helen Dale

1. Helen Dale

2. Transgendered Individualsand the Criminal Justice System

3. Basis for the talk

4. Former Chair & Trans Lead – LAGIP Past Chair Inner Enigma Founder member a:gender Former Trans rep Salford Police IAG Former member GMP Strategic LGBT IAG • Counsellor Gender Identity Issues • Counselling Supervisor • spare time: IT Project Manager, Greater Manchester Probation

5. First Openly trans person in Probation Service Started with GMPS 15th Nov 1999

6. Joined LAGIP – Lesbians & Gay Men in Probation Attended National Conference at UEA, Norwich in 2000 My presence challenged by lesbian member

7. LAGIP –Lesbians & Gay Men in Probation– Not Trans I identified as Lesbian – so OK But maybe it should also include trans NO! already considered and rejected Really?

8. At the AGM: Volunteers needed for Steering Group Volunteers to organise next conference I can do that!

9. Next conference was Manchester in 2002 Did presentation on why LGB&T made sense to me At AGM carried almost unanimously – just 1 abstention

10. When LAGIP was officially recognised by National Probation Service, I joined the chair at Staff Associations meetings Helped establish LAGIP constitution & effectively acted as Vice Chair Later made official – then became Chair

11. LAGIP recognised as professional body & respected Able to influence policy (sometimes) Far from Trans riding on back of LGB, 4 out of 10 committee members were trans at one point (half of all trans employees!)

12. Dark Ages C2000 Minimal recognition/ rights Gender Reassignment RegulationsProtection in employment & vocational training

13. I offered my support to staff dealing with trans clients Asked to advise new Probation Officer dealing with young trans offender in YOI Not clear if TV or TS Asked to visit YOI

14. Lack of understanding of trans issues I received requests for help from GMPS and other Probation Services around the country

15. Sample cases: Young offender serving 5 years for manslaughter; lost temper after boy friend changed mind about funding surgery TV making nuisance phone calls trying to find female who would help with dressing Transwoman who lost temper in hospital casualty dept when staff starting laughing behind her back

16. Sample cases: Transwoman in prison for murder – kept losing chance of parole due to drug use TV who broke into hotel room to steal clothes Transwoman who was charged with assault after dispute with a club bouncer

17. Criminal Justice System Police Crown Prosecution Service Magistrates & Crown Court Probation Service Prison Service

18. Our Roles in CJS: • Staff • Victims • Accused/ Offenders

19. You’re nicked sunshine!

20. Police Association of Chief Police Officers:“The Gender Recognition Act 2004 Guidance for Police Officers and Staff” (2005) Safer Detention And Handling Of Persons In Police Custody (2012) Now also in PACE Code Of Practice For The Detention, Treatment And Questioning Of Persons By Police Officers (2012)

21. ACPO Guidance

22. Executive Summary Recognised implications of The Gender Recognition Act 2004 on employment and service delivery policies. Need to amend Police National Computer System to recognise “acquired gender” and avoid unlawful disclosure of “protected information”

23. Recommendations included: • All staff are aware of the new offence created by the GRA relating to prohibited disclosure of personal information relating to gender reassignment • Custody staff to be made aware and to recognise the sensitivities involved in arrest, detention and searching of trans persons. • To ensure a memorandum of understanding with transitioning individuals is implemented as soon as practicable.

24. Police Records Most police records are likely to be covered by exemptions under S22 of the GRA: “investigation of crime” & “proceedings before a court”

25. PNC and Gender Reassigned Marker If a detainee informs the police that they are in possession of a new birth certificate then, subject to documentary confirmation, the National Intelligence Service (NIS) must be advised and they will update the PNC records to reflect the gender change. The old name/ sex will be retained as an Alias.

26. PACE

27. Establishing Gender Of Persons For The Purpose Of Searching Searches and other procedures may only be carried out by, or in the presence of, persons of the same sex as the person subject to the search or other procedure. All searches and procedures must be carried out with courtesy, consideration and respect for the person concerned. Police officers should show particular sensitivity when dealing with transgender individuals (including transsexual persons) and transvestite persons

28. Establishing Gender Of Persons For The Purpose Of Searching When establishing whether the person concerned should be treated as being male or female for the purposes of these searches and procedures, the following approach which is designed to minimise embarrassment and secure the person’s co-operation should be followed

29. Establishing Gender Of Persons For The Purpose Of Searching a) The person must NOT be asked whether they have a GRC b) If there is no doubt as to as to whether the person concerned should be treated as being male or female, they should be dealt with as being of that sex. c) If at any time there is doubt as to whether the person should be treated as being male or female:

30. Establishing Gender Of Persons For The Purpose Of Searching • the person should be asked what gender they consider themselves to be. Subject to (ii) below, the person should be treated according to their preference; • if there are grounds to doubt that the preference in (i) accurately reflects the person’s predominant lifestyle, for example, if they ask to be treated as a woman but other information make it clear that they live predominantly as a man, or vice versa, they should be treated according to what appears to be their predominant lifestyle and not their stated preference;

31. Establishing Gender Of Persons For The Purpose Of Searching (iii) If the person is unwilling to express a preference as in (i) above, efforts should be made to determine their predominant lifestyle and they should be treated as such. For example, if they appear to live predominantly as a woman, they should be treated as being female; (iv) if none of the above apply, the person should be dealt with according to what reasonably appears to have been their sex as registered at birth.

32. Doesn’t always work out that way!

33. What happens when those who should protect you are the attackers?

34. Told by male police officer that I chose to be trans. When I tried to correct him he handcuffed me and read me my rights. Comments to PFC I was attacked in front of a police officer, who simply shrugged when she witnessed the assault (as if to say ‘You brought it on yourself, the way you look’); then she turned around and walked off.

35. local beat officer made inappropriate comments about me after I’d been subjected to threatening behaviour in my home by a neighbour. Was asked to disclose if pre or post-op before being searched. They were informed I was pre op by 3rd party and I was searched by 2 men. I was so traumatised by this search and the comments that when released I went to Beachyhead to commit suicide.

36. Crown Prosecution Service Review evidence and prosecute cases

37. Crown Prosecution Service Guidance on Prosecuting Cases of Homophobic and Transphobic Crime Members of the LGBT communities have every right to be treated with dignity and respect by CPS staff  If you are in any doubt about how to refer to the gender of the victim or witness, ask the person concerned how they wish to be addressed and find out the language with which they feel comfortable about having their gender discussed. 

38. Crown Prosecution Service The CPS definition of a transphobic incident is: "Any incident which is perceived to be transphobic by the victim or by any other person."

39. Crown Prosecution Service Particular issues that affect trans people The law with regard to sexual assaults on or by trans people was changed by the implementation of the Sexual Offences Act 2003. Section 1(1) of the Act states that an offence of rape is committed if:  "A person (A) - intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, B does not consent to the penetration, and A does not reasonably believe that B consents." 

40. Crown Prosecution Service References in the Act to "penis", "vagina" and other parts of the body also include references to a part surgically constructed. It follows, therefore, that the law now recognises that vaginal rape can be committed against a trans woman who has had such surgery. A trans woman who has not had gender confirmation surgery may be capable of the act of rape. Many trans men still have a vagina, whether or not a penis is constructed so, in these cases, where there is forcible penile penetration of a trans man's vagina, rape is again the appropriate charge.

41. Magistrates & Crown Court Gender Recognition and what it means for staff working in HMCTS If, during the course of proceedings within a court or tribunal, a party identifies themselves as being transsexual and wishes to be known in the opposite sex, staff must ensure that they handle these issues with discretion and sensitivity. In relation to family proceedings, protocols are in place to ensure files are handled by a minimal number of staff and should be locked away when not in use.

42. Magistrates & Crown Court The Equality and Human Rights Commission Guidance on amending records states: ‘Good practice is for public authorities to change name, title and gender on first request from a service user who simply provides a formal change of name document such as a deed poll or a statutory declaration. ‘Trans service users do not have to present any evidence of any medical treatment nor a Gender Recognition Certificate to request for this to be done’.

43. Sentencing Suspended Sentences Fines Community Sentences (Probation): • Supervision orders • Community Payback • Specified Requirements Prison

45. Probation may include: • Community Supervision • Unpaid Work (Community Payback) • Accredited (& local) Programmes • Approved Premises • Also writes Pre-sentence & Parole Assessment Reports

46. Protocol for working with Transgendered Individuals Main challenges: • Recording information • How to relate to and treat different trans people • Approved Premises • Gender Specific Programmes • Community Punishment

47. Protocol for working with Transgendered Individuals Need to take account of: • Legal Requirements • Organisational Policies • Best Practice and • Need to engage Client

48. Protocol for working with Transgendered Individuals Legal Requirements • Data Protection Act 1998 • Gender Reassignment Regulations 1999 • Gender Recognition Act 2004 • Equality Acts 2006 & 2010 • Gender Equality Duty 2007 • Sex Discrimination (Amendment of Legislation) Regulations 2008

49. Implications for Probation Staff

50. Do you treat someone as male or female? • Individuals who have undergone surgery or who have a GRC must be treated as their “acquired gender” • Transvestites/ crossdressers/ drag queens etc who continue to identify as their birth gender should be treated as such