MINISTER FOR JUSTICE Simon Harris has said a new policy regarding transgender people in prisons will be “informed by best international practice”. 

The Irish Prison Service is due to finalise a policy on the matter that it has been working on this year. 

Minister Harris said today that the policy will be ready in the coming weeks. 

It follows comments from Taoiseach Leo Varadkar yesterday that the government may consider introducing policies similar to Scotland regarding where transgender people in prison are located.  

Scotland recently decided to reverse a policy of placing a transgender person in a prison that aligned with the gender they were living with in the community pending a risk assessment and instead place them in prisons corresponding to the gender they were assigned at birth. 

The change in policy came amid a case involving Isla Bryson, an offender convicted for rape who transitioned while facing trial. The new rules will be applied regardless of whether or not the person in question has a violent history. 

In Ireland, a 21-year-old transgender woman was sentenced earlier this week to five-and-a-half years in prison after being found guilty on seven counts of threatening to kill or cause serious harm to her mother on dates in 2020 and four charges of threatening to kill or cause serious harm to one of her social care workers. 

Judge Tom O’Donnell said the case was “one of the most complex cases” he has dealt with in his career. 

The judge had requested pre-sentencing psychiatric and probation reports on Barbie Kardashian’s “complex” background, from her childhood through to her adulthood, which he said had made for “chilling and disturbing” reading. 

Owing to difficulties at her home, she was taken into foster care at a young age and was cared for in the Coovagh House, Limerick, a residential facility for high risk and vulnerable children, where her residency was extended beyond her 17th birthday as it appeared there was no place in the State to meet her complex needs. 

She remained at Coovagh House until her residency was due to expire shortly before she turned 19 and she was taken into custody at the women’s section of Limerick Prison in late September 2020 after appearing before Limerick District Court. 

“The court acknowledges the extremely complex background of the accused, who at this stage must be regarded as a vulnerable person,” the judge said. 

However, he noted garda evidence they had “grave concerns” about her movements after she served her sentence as she still had a “motivation to carry out the threats”. 

It is understood that she is in solitary confinement in prison in Limerick. 

Prisons

Minister Harris said today that individual risk assessments are carried out on all prisoners regardless of their gender. 

“When we look at the prison population, the most important thing for the Irish Prison Service to do in any scenario is to ensure the safety and wellbeing of all prisoners,” he said. 

“If there is a prisoner who is [in] any way a risk to the prison population, measures are put in place to make sure that person does not mix with that prison population.”  

In response to a question in the Dáil last month, Minister Harris outlined the procedures involved in determining where a person is imprisoned.

“The Prison Service is responsible for the safe and secure custody of all persons held in prison,” the minister said. 

“Where a court makes an order committing a person to a prison, the Prison Service must accept that person into custody in whichever prison is specified by the court. While all prisoners committed are accommodated in accordance with their legal gender, it should be noted that Irish prisons are not legally defined as ‘male’ or ‘female’ prisons. 

“On arrival in prison, the Prison Governor will consider all aspects of the health and well-being of the person arriving, and of the whole prison population. 

“The Governor may make a recommendation on the appropriate placement within the prison system for the person concerned, taking into consideration good order, security and operational issues, protection issues, available accommodation and the healthcare needs and human rights of the prisoner, as well as the safety and security of the prison population more generally.” 

In 2016, a report published by the Irish Penal Reform Trust identified that there was “no policy in place regarding the treatment and accommodation of transgender prisoners and there is clearly a need to address this”.     

The report was examining the treatment and experiences of LGBT+ people in prisons. 

It outlined that international evidence shows transgender people in prisons face “particular challenges”. 

“Transgender individuals are not easily accommodated within the strict binary gender structure of most prisons, and there are recurrent concerns about prison placement policies, appropriate access to medical treatment, the right to gender expression, and the use of gender-specific policies such as body searches,” the report said. 

“Transgender prisoners are also at particular risk of assault and victimisation as a result of the culture of violence and hypermasculinity that exists in many male prisons.” 

The report noted: “Genitalia-based placement is inherently discriminatory in that it refuses to recognise gender identity, and thus violates human rights responsibilities. Inappropriate placement may also place transgender people at significant risk of harm (Peek, 2004; UNODC, 2009; Smith et al, 2013). This issue is particularly acute for transgender women placed in male prisons (SLRP, 2007).” 

Additional reporting by Press Association and David Raleigh