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

The claimant, a serving prisoner identifying as female, sought judicial review of the Governor of HMP Frankland’s decisions limiting access to certain items and facilities needed to live in the claimant's acquired gender role. The court analysed the relevant custodial policy, The Care and Management of Transsexual Prisoners (PSI 07/2011), in particular its mandatory paragraphs permitting prisoners to live permanently in their acquired gender and Annex B provisions (notably B5 and B6) which allow restriction of items when there is an unmitigable security risk.

The judge applied the legal principle that a policy may be departed from where there is a real need and the departure is proportionate (drawing on the approach in R (Lumba) v Secretary of State for the Home Department as cited in the judgment). On the facts the Governor’s restrictions on wigs, intimate prostheses and tights were held to be justified by security, good order and discipline. The court also considered a direct discrimination claim under the Equality Act 2010 (section 13(1) read with section 29(6)) and held the correct comparator was a male Category B prisoner; on that basis no less favourable treatment was shown. The judicial review claim was dismissed.

This is a first-instance judicial review brought by Kimberley Green, a Category B male prisoner who identifies as female and who challenges HMP Frankland’s handling of her requests to obtain items and facilities to present in her acquired gender. The claimant sought relief by impugning the Governor’s decisions as inconsistent with national policy (PSI 07/2011) and as discriminatory under the Equality Act 2010. Key contested items included wigs, intimate prosthetic devices, tights and access to specialist suppliers and hair removal products; other complaints included changing facilities and the treatment of purchases from certain suppliers.

The court set out the legal and factual framework: PSI 07/2011 requires that prisoners wishing to begin gender reassignment be permitted to live permanently in their acquired gender, and Annex B recognises access to prostheses and other items but permits prohibition where a security risk cannot reasonably be mitigated (B6). The court noted the claimant’s criminal history, custodial status and the secure context of HMP Frankland, including that prison security and good order are central constraints.

The issues framed by the court were (i) whether the Governor had breached PSI 07/2011 by preventing the claimant from living in her acquired gender role and (ii) whether there had been unlawful direct discrimination under the Equality Act 2010. The judge applied the test for permissible departure from policy: a departure must answer a real need and be proportionate to the legitimate objective. On the evidence, prohibitions on intimate prostheses and tights were justified by risks of concealment of contraband and misuse; prohibiting wigs was also held to be within the security exception because wigs could facilitate disguise and escape. The court accepted the Governor’s stated reasons and discretion in balancing policy aims against security and good order. On discrimination, the court held the appropriate comparator was a male prisoner and found no less favourable treatment; indeed transgender prisoners enjoyed certain advantages in clothing and privileges. The claim was dismissed and the judge observed that further practical work should be undertaken to seek solutions to issues such as wigs and outsize clothing, and that such matters might be suitable for the Prison Ombudsman or internal review rather than the Administrative Court.

The claim is dismissed. The court held that PSI 07/2011 requires prisons to permit prisoners to live in an acquired gender but allows restriction of items where a security risk cannot reasonably be mitigated (Annex B, B6). Applying the Lumba principle the Governor was permitted to depart from parts of the policy where there was a real need and a proportionate response. The Governor’s prohibitions on wigs, intimate prostheses and tights were justified by legitimate security and good order considerations. The direct discrimination claim under the Equality Act 2010 failed because the proper comparator is a male Category B prisoner and no less favourable treatment was shown.