The transgender pains of imprisonment

The transgender penal policy context in Scotland

In 2014 the SPS introduced a policy relating to transgender people in custody and gender identity more widely: ‘Gender Identity and Gender Reassignment Policy for those in our Custody’. The policy seeks to ‘ensure that individuals who identify as transgender people or who intend to undergo, are undergoing or have undergone gender reassignment receive respect and fairness at all times from the Scottish Prison Service’ (SPS, 2014: 5).

Unlike similar policies (for example in England and Wales), the policies and guidance around suitable housing for transgender people in custody in Scotland do not require a Gender Recognition Certificate. ³ The housing of transgender people is informed by an individual risk management approach. The SPS policy has been subject to some criticism, although this is not based on empirical engagement with transgender people or other people living or working in custody. This Scottish context within which this study is located is quite distinct from all existing studies of transgender people in custody.

The sample

This article analyses the accounts of 13 participants, equating to a 76 percent sample of the entire Scottish transgender person in custody population at the time of data collection. Of the 13 participants, 11 were transitioning from male to female and two from female to male. Both of the male transgender participants were located in the female estate with cisgender women, along with five of the transgender women (within Scotland, parts of the female estate are located in what was previously the male or young persons estate). Another five of the transgender women interviewed were located in the male estate as a consequence of risk management assessments relating to these participants. Twelve participants were in mainstream and protection halls, and one participant was in the segregation part of one of the prisons. As outlined above, these management decisions are made in reference to the SPS Gender Identity Policy.

All participants were at varying stages of their individually defined transition. Importantly, ‘transition’ had a very different meaning for the participants in this study – for some this meant a medical transition, for others this related more to transitions involving hormones, clothing and appearance, or social transitions. The Findings sections below illustrate the complexity of these transitions and the pains associated with being a transgender person in custody.

Ethics

Although there is limited research analysing the specific experiences of transgender people in custody in Scotland (and more widely), many of the participants in this study had taken part in previous studies on a range of topics not related to being transgender. As one research participant mentioned:

Because obviously, I’ve done stuff like this before [take part in research in prison], and never hear anything. So it’s good to be able to have somebody say, look, we’re going to give you this back so you can see. (Participant 2)

Each of the 13 participants was sent a draft of this article and given a month to respond or ask questions and to ensure that all participants were confident that their identity remained confidential; this is what Lincoln and Guba (1985) refer to as ‘member checking’. My contact details were provided and a commitment to meet and discuss any concerns in relation to any aspects of the article was given to all participants. One participant requested that her narrative be explicitly attributed to her, something that was discussed with the participant and ultimately decided against. Another participant raised points in relation to the article, in particular around ensuring the confidentiality of her narrative; I address this through the use of pseudonyms and the removal of any identifying information in the article.

The pains of being in the wrong hall and in the wrong clothes

A number of studies have illustrated the difficulties and challenges associated with being a transgender person in the community (Melendez and Pinto, 2007; Moolchaem et al., 2015). Within these studies there emerge experiences of stigma, discrimination and exclusion. Until now, no studies have considered how being in prison might shape these experiences and how prison settings and certain staff cultures (Crewe et al., 2011) might influence particular forms of treatment of transgender people in custody. Reflecting themes identified in a wider evidence base relating to transgender people in custody (Bassichis and Spade, 2007; Beard, 2018; Brown, 2014; Brown and McDuffie, 2009; Forder, 2017; Gorden et al., 2017; Jamel, 2017; James et al., 2016; Jenness, 2010; Jenness and Fenstermaker, 2014, 2016; Jenness and Gerlinger, 2020; Jenness et al., 2019; Lamble, 2012; McCauley et al., 2018; Pemberton, 2013; Read and McCrae, 2016; Routh et al., 2017; Sexton and Jenness, 2016; Sexton et al., 2010; Sumner, 2010; Sumner and Sexton, 2016; Tarzwell, 2006), this section explores aspects of life in custody that the participants in this study felt were important. Throughout this section I consider the implications of being in custody in relation to these areas (such as transitioning) for transgender people. This is often in contrast to the assumptions about and experiences of these processes in the community for the participants.

In an influential paper on transgender people in custody, Jenness and Fenstermaker (2014) consider the pursuit of the ‘real deal’ of gender authenticity. However, they do not consider the potential influence of prison staff on this ‘pursuit’. In my study, authenticity also emerged, but in a different way, with a number of participants reflecting on the ways in which prison staff in particular undermined their pursuit of authenticity. For example, this took the form of staff questioning their reasons for transitioning:

And then it feels like there’s suspicion on you, there was a lot of, why are you going through it, why now, and that’s the first question they kept asking, why now. I don’t think that’s very fair, that’s nobody’s business, except the person. (Participant 13)

As a consequence of individualized risk management assessments (SPS, 2014), a number of the participants in this study were located in halls consistent with the sex assigned at birth as opposed to their lived gender, which constituted a further subversion of their pursuit of the ‘real deal’. This caused a wide range of pain for these participants, because being located in halls of their birth gender was not something that they had experienced in the community. Being in the ‘wrong’ hall caused pain and difficulty for all participants who experienced this. There is very little written on transgender men in the community or in custody. Within this study, two of the 13 participants were transgender men, who faced quite specific pains relating to their imprisonment, shaped to a significant degree by being located in the female estate, that is, not in the estate of their lived gender. There emerged consistent differences in the ways that transgender men and women in custody were to be treated, because some transgender women were in the female estate of their lived gender (irrespective of whether they had had surgery), whereas all transgender men were in the female estate of their birth gender. A number of participants reflected on the implications of this through gendered forms of treatment by prison staff:

They do treat me like a male but sometimes it feels as though they don’t because they’ve got me in a female prison – what else am I meant to do in a female . . . well, in a female hall.’ (Participant 4)

This quote provides a unique perspective on the gendered nature of prisons (McCorkel, 2003; Thomas, 2003) from the perspective of someone transitioning from female to male within custody. Being located in a wing of their birth gender rather than of their lived gender institutionally subverted the pursuit of the ‘real deal’ for the participants in this study, as well as posing a number of practical challenges. Participants located in the hall of their birth gender faced significant difficulties in getting gender-appropriate clothing, make-up and hair products that would enable them to get closer to the vision of the gender they were pursuing:

I’m supposed to be able to buy make-up here. I’m supposed to be able to have access to shaving equipment. I’m supposed to be able to get prosthetics in, everything else. None of it is being authorized. But they [prison staff] won’t let me have it because they don’t want to fill in the paperwork. (Participant 12)

This quote points to the ways that prison institutions and the staff cultures within them can significantly curtail and divert the transitioning journey of the participants. The quote above also resonates with the institutional thoughtlessness found in other prison studies (Crawley, 2005), ⁵ although this is taking a specific form here, in that transgender people in custody are being denied access to items they are entitled to, items that might enable their pursuit of the ‘real deal’ to have more authenticity and validation. Despite these difficulties, a number of transgender women who were located in a male wing had been able to source female clothing and make-up. Despite this, they were allowed to wear these only in their cell and not in the public spaces of the prison; this is in contrast to cisgendered women in custody, who were permitted to wear make-up outside of their cells:

I’m not allowed to wear anything other than prison clothing here, and I’m not allowed to wear my make-up [outside of] my cell. (Participant 13)

This quote highlights both an inconsistency in the application of the 2014 SPS Gender Identity Policy and, more widely, the ways in which prison staff were able to use their position of authority to undermine the pursuits of the many participants in achieving their lived gender. Liebling (2007) has suggested that prison staff cultures vary significantly, and the way in which staff use power shapes these differences.

This section has illustrated a further level of nuance in staff using power in specific ways with transgender people in custody. The notion that affirming, engaging in gender-affirming processes and/or changing gender is a journey is quite widely referred to within research on transgender people (Mollenkott and Sheridan, 2010; Nichols, 2013; Okumura, 2007). However, it emerges that being in prison causes pain for transgender people because being in this institutional context in many ways undermines and complicates their transitioning journey, a journey that was largely framed in terms of changing one’s gender. There appeared to be limited scope for the affirmation of gender within the institutional context of the prison, which is formative in shaping the journeys explored here. The institutional policy context required the participants in this study to be seen to be trying to change their gender in particular ways (such as changing their name) in order to be considered ‘authentic’ in their transition.

The pains of transitioning in custody

Transitioning from their birth gender to their lived gender is often a stressful and difficult time for the person transitioning (Budge et al., 2013). In the community, the process of transitioning from one gender to another can take many years; in some instances it can take two years to get an initial appointment at a gender clinic (Davis, 2019). A significant proportion of the interviews with the participants focused on transitioning, and the challenges and opportunities this constituted in custody in contrast to transitioning in the community. Analysis of transitioning gender within custody has not been explored within the existing literature on transgender people in custody, so this section provides a unique insight into the ways in which prison shapes transitioning and further complicates an already complex process. The interviews reveal significant diversity in the experience of transitioning, depending on whether the person had started their transition before, or within, custody, again implying that custody has a significant impact on the transitioning journey of the participants. A number of participants felt that transitioning in custody was particularly difficult, compared with doing this in the community:

I only started transitioning in January 2016 [while in custody]. That’s the worst decision I’ve ever made. I’ve not been able to transition, just got used against me, held against me. (Participant 5)

This was a sentiment shared by a number of participants: their transgender status and the process of transitioning made them more of a target for negative attention from prison staff, and their transgender status was in some ways being used against them. Many participants stated that, for logistical reasons, they felt that the process of transitioning was slower and more problematic in custody:

Certainly, a lot harder than it would be in the community. I think it will slow it down . . . there’s a lot more logistics to move prisoners, you need a bus, you need escorted, you need this, it needs to be done on certain dates. And obviously, we’re law-breakers, and they say we get the same standard of health care, but we don’t. (Participant 9)

This points to issues with the equivalence of access to the transitioning process, and a wider perception that healthcare provision was particularly poor in custody (Ismail, 2020; McLeod et al., 2020; Sim, 1990; Stürup-Toft et al., 2018). Transitioning in custody resulted in a number of challenges in accessing healthcare. For example, a number of participants reflected on the challenges of getting health appointments outside of the prison, given the security concerns associated with this:

It’s harder for me to get my appointments with the gender clinic. On the outside I could call up at any point and get the next available one and just go. I’m not even allowed to know when an appointment is if I have to go to a hospital outside of the jail, as that can be a risk of potentially trying to escape, and I do understand that, but that can impact me quite badly as well, when I’m just woken up in the morning and told you’ve got to go to hospital. It means I’ve not got time to get ready. (Participant 9)

This quote crystallizes the issues that the participants had in accessing healthcare, issues that other prison studies have also highlighted (Plugge et al., 2008). In Scotland in 2011, prison healthcare was transferred from the SPS to the National Health Service (NHS) with the aim of reducing health inequalities and for closer integration between prison and public health systems. However, this transition has been quite problematic (RCN, 2016), and the quote above highlights continuing problems for people in custody accessing healthcare. For those participants who were at the point of considering an operation as part of their transition, this raised particular concerns shaped by the prison context. It was particularly stressful not knowing when their next appointment was, and communication with health professionals about appointments and waiting lists was often problematic and distressing for participants; there were many accounts of letters going missing and long waits for replies to letters.

Hormone treatment is a central component of transitioning for transgender people (Den Heijer et al., 2017), and being in custody again emerges as having profound implications for this aspect of the transitioning journey for many of the participants in this study. Both transgender men and transgender women in this study indicated that prior to custody they had been buying non-prescribed hormones online, largely for convenience but also owing to negative experiences of accessing health services, both within custody and community gender clinics:

I did admit to staff before I came in here that I was buying testosterone online which I shouldn’t have taken. (Participant 4)

However, as a consequence of being in custody, this wasn’t possible for the participants and was slowing down their transition journey:

I would like to think that, whether I’m in prison or outside, it’s [transitioning] going to go at the same pace. Sadly, I don’t think it is because if I was outside I would be buying oestrogen online. (Participant 3)

Part of the reasoning for buying hormones online was the often long wait for appointments in gender clinics and a wider resistance in parts of the transgender community to medicalization (Burke, 2011). Some studies have indicated that 49 percent of transgender people in the community have resorted to buying non-prescribed hormones (De Haan et al., 2015). Being in custody made it impossible for the participants in this study to buy hormones online and they often faced long waits for health appointments, meaning they were unable to transition in this critical way.

The quotes above have been focused on the challenges associated with transiting medically. However, transitions also include social elements (Burnes et al., 2016; Olson et al., 2016). Social transitioning relates to how transgender people learn to behave socially in ways normally associated with people of their lived gender. Social transitioning within the context of being housed in halls consistent with the sex assigned at birth and not their lived gender was particularly challenging. As a transgender women stated:

From the sort of social transitioning and sort of finding out who I am, it’s been very difficult. I mean the only thing that’s actually different about me is my name’s changed, my hair’s longer and I wear make-up, that’s it. (Participant 3)

Importantly, these were difficulties faced by both male and female transgender people:

It’s not going to teach me a lot how to be a proper man because I’m in with females, know what I mean. See like a proper man . . . I don’t know what that means, but like just like any ordinary men would do. Like I feel more comfortable spending time with guys than I do with females. (Participant 4)

The prospect of learning to socially transition with staff of their lived gender was not something that participants viewed positively; they consistently felt that it was possible to socially transition only with other prisoners of their lived gender.

Although challenges and delays with medical and social transitioning in custody were often mentioned, a small number of participants felt that custody was in fact a safer and better place to transition than the community. These views were shaped by the assumption that transphobia was increasing in the community: ⁶

I think the act of physically transitioning, I think is safer in custody than it probably is outside. Well I mean outside, I mean like there’s a big increase in sort of hate crimes . . . at the moment. But within prison it is a safer environment. (Participant 3)

This quote to an extent refers back to the pre-prison experiences of abuse that this participant had experienced; for them the community was not a safe place. These feelings of relative safety in custody resonate with a number of studies that have explored feelings of safety amongst other groups within prison (Wolff and Shi, 2009), although here we see this expressed in the context of transitioning – a particularly vulnerable time for transgender people (Grossman and D’Augelli, 2006).

This section has illustrated a significant range of views on transitioning in custody, highlighting particular pains and to some degree feelings of safety associated with transitioning in custody. Responses to questions around transitioning in custody point not only to how the process of transitioning is shaped by the prison context but, more widely, to how people transitioning within an ostensibly binary system illuminate the fluidity of the performance and materiality of gender within custody (Butler, 1990, 1993).

The pains of transphobia in custody

A number of studies have explored the experiences of discrimination and stigma in the community, suggesting that 59.9 percent (Budge et al., 2013) or 63.0 percent (Grant et al., 2011) of transgender people have experienced transphobia or a type of discrimination. The 2015 US Transgender Survey (USTS) states: ‘In the year prior to completing the survey, 46% of respondents were verbally harassed and 9% were physically attacked because of being transgender’ (James et al., 2016: 5). In terms of the UK context within which this study is located, the latest British Social Attitudes Survey (Curtice et al., 2019) suggests that societal attitudes in the UK towards transgender people are broadly positive, although there is nuance within these views:

The [British] public sees transphobia as wrong and is more likely to have positive than negative feelings about transgender people. However, this isn’t the whole story; attitudes to transgender people are more nuanced in relation to specific situations and vary according to demographic characteristics. (Morgan et al., 2020: 3)

Within this wider context, all participants in this study outlined experiences of transphobia while they were in custody, implying that custody is more transphobic than the community. Responses to questions relating to transphobia are clustered around two groups of relationships, those with other people in custody and those with staff.

Interactions between people in custody are often complex, with research illustrating elements of bullying (Ireland, 2005, 2013) and violence (Bottoms, 1999; Cooke et al., 2008; Liebling and Arnold, 2012). Solidarity is rarely observed within a context of the increased atomization of prisoner relationships (Crewe, 2009). Comments in this section sought to comprehend the participants’ interactions with other people in custody, and the extent to which transphobia was evident in these interactions. The transphobia the participants experienced in interactions with other prisoners often took sexualized forms, with comments referring to genitalia:

There have been comments about, this is a man’s hall, we don’t want you here. I’ve had comments, for instance, there’s one gentleman in specific was shouting at me, get your tits out, are your tits real? Have you had the operation, are you getting your dick cut off, I have had these comments, but it’s the minority. (Participant 11)

In some instances, transphobic comments took quite aggressive forms, with the threat of violence occurring: she’s [a female prisoner] made comments about taking an AK47 and shooting us, because we’re not real women’ (Participant 2).

These quotes are representative of all the participants in this study, who had all experienced transphobic comments, but critically there were no accounts of transphobic physical or sexual violence. This is in contrast to US-based research suggesting high levels of sexual victimization of transgender women in custody (Jenness et al., 2019). Despite regular transphobic comments and the unrealized threats of sexual and physical violence, there was a sense that the punitive nature of prison might constrain expressions of transphobia. This was the result of an assumption that people might be inhibited by the implications of this for their sentence:

Even people that have very negative views are much less likely to vocalize them in here through fear of it impacting on their sentence, you know, or them getting placed on report for being abusive or insulting. (Participant 3)

It is rare to find examples of people in custody reflecting on prison rules as a positive influence on their time in custody, but for some of the participants in this study this was a means through which everyday social order (Bottoms, 1999) could be maintained. Ugelvik (2016) has written about the implications of snitching within prison, which feminized those men who are seen to behave in this way. A theme emerging across a number of interviews is participants engaging with staff around instances of transphobia. The quote below by a transgender woman is illustrative of these responses:

[A prisoner] commented, that’s a guy right there, what the hell, that’s a guy. And then the staff member asked me, what did they just say there, and I told her, and she went, is that right, you’re on report. (Participant 12)

This resonates with Ugelvik’s analysis, because for this participant informing the staff member not only had the positive outcome of the perpetrator of this instance of transphobia being punished, but also resulted in this participant being feminized as a consequence of being seen to be a ‘snitch’. For the transgender women in this study, being feminized was something to be welcomed, in particular when they were located in male halls, because it contributed to their pursuit of the ‘real deal’. Conversely, for the transgender men in this study the opposite was true, resulting in them tending not to report instances of transphobia. For example, the transgender man below was clearly aware of the negative consequences for him in terms of being seen as a grass, ⁸ which would subvert his performance of masculinity:

The staff see it on CCTV anyway [instances of transphobia] and so do the other people see it on CCTV – then I’m getting called a grass and all that. (Participant 4)

These two quotes relate to reporting transphobia by other people in custody. Quite different responses were observed when participants reflected on their reaction to transphobia from staff. Transphobia perpetrated by staff took similar forms to that from other prisoners, including consistent misnaming, misgendering, using the wrong pronouns and questioning the authenticity of their transition and motivation for transitioning. For some participants this was a consequence of certain staff having old-fashioned views; Tait (2011) would define these officers as ‘Old School’:

I think they were just old-fashioned, in a way, they just couldn’t see that [transitioning] as an option. (Participant 1)

However, for all participants who had been the victim of transphobia by staff, informing was something that might result in unwanted attention, resonating with other studies that have indicated that prisoners might limit their complaints to make life easier (Crewe, 2007):

Because if you do that [complain about transphobia] then you are, then you’re bringing your head above the parapet and then, you know, if I start getting staff official coding or officially pulled up for that, then obviously they’re going to start making my life quite difficult. (Participant 3)

This is particularly problematic, given that most participants had experienced transphobia from staff or other prisoners at some point during their sentence. There were conflicting views across the interviews, with some participants viewing other prisoners as more problematic, whereas others considered staff to be more of a problem. For the second group of participants, transphobic treatment by staff felt different because this was within a context of the overuse of power by certain officers:

I feel more transphobia from the officers than I do from the prisoners. Well, the officers . . . a lot of the officers here, they’re so driven on the power. (Participant 13)

Here this participant is connecting their experiences of staff abuse of power in the form of transphobia to wider currents of staff power and use of authority that shape the experience of custody (Crewe et al., 2011). For the participants in this study, relative powerlessness was experienced from the position of being both a prisoner and a transgender person. One participant suggested:

I think on an institutional level there is elements of transphobia, but I don’t think they would recognize it as that. I think they would just say it’s a lack of understanding. (Participant 3)

The institution-wide permutations of transphobia in prisons are beyond the scope of this article, but narratives such as the one above will be critical in shaping prison policy that is sensitive to and supportive of the forms that transphobia takes in prison. This section has explored numerous examples of transphobia experienced by the participants in this study, transphobia that is shaped by the prison context. The pains associated with these experiences of transphobia constitute a unique insight both into the experiences of discrimination that the participants in this study have experienced in custody, as well as more widely into expressions of agency through the pursuit of the ‘real deal’ by the participants in an often hostile environment (Bottoms, 1999; Cooke et al., 2008; Ireland, 2005, 2013; Liebling and Arnold, 2012).