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

A prison policy permitting transgender prisoners to live in their acquired gender must be applied in a practical and individualised way, subject to proportionate security restrictions. A governor may depart from policy where there is a real need and the departure is proportionate to the policy’s legitimate objective. In a prison, security, good order and the protection of vulnerable prisoners may justify restrictions on clothing and prosthetic items. For direct discrimination under the Equality Act 2010, the appropriate comparator for a male-to-female transgender prisoner without a Gender Recognition Certificate was a comparable male prisoner, not a female prisoner.

The claimant was a serving Category B prisoner seeking to transition from male to female. She challenged decisions at HMP Frankland restricting access to wigs, intimate prostheses, tights, certain clothing and specialist suppliers. She alleged breaches of the Secretary of State’s policy, The Care and Management of Transsexual Prisoners (PSI 07/2011), and direct discrimination under the Equality Act 2010.

The Governor relied on prison security, good order, discipline and the protection of the claimant and other prisoners. The central issues were whether the restrictions breached or unlawfully departed from PSI 07, and whether the claimant had been treated less favourably because of gender reassignment.

1. Policy and security. PSI 07 required a prisoner who wished to begin gender reassignment to be permitted to live permanently in the acquired gender, including access to appropriate clothing and presentation items. Its mandatory provisions had to be read with the individual compact and the policy’s security exception. The Governor retained substantial discretion over practical arrangements.
2. Restrictions on items. Restrictions on tights, intimate prostheses and overtly female clothing outside the residential wing were justified by demonstrable risks of escape, concealment, assault, sexual abuse and disorder. The restrictions were proportionate in the prison context. The ban on wigs was presently justified because a wig was a transferable and effective disguise, although the Governor should continue examining whether the risks could be mitigated.
3. Departure from policy. Ordinarily, a policy must be followed. Applying R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, departure was lawful where there was a real need and the departure was proportionate, having regard to the policy’s objective. Preventing access to an internet-only specialist supplier was presently justified because prisoners could not use the internet for security reasons, but a longer-term solution for access to suitable larger clothing was required.
4. Discrimination. Under sections 13(1) and 29(6) of the Equality Act 2010, the claimant had to show less favourable treatment by comparison with an appropriate male prisoner. Following the approach in Croft v Royal Mail Group PLC [2003] EWCA (Civ) 1045, a female prisoner was not the appropriate comparator. The claimant had not been treated less favourably than a comparable male Category B prisoner; indeed, she received advantages unavailable to ordinary male prisoners.
5. The claim for judicial review was dismissed on all grounds.