The Ethos of Female Prisons
A philosopher breaks down the debate over how to treat male criminals who self-identity as women.
Philosophers like to spend their time thinking about hard questions. This includes political philosophers, which is why you won’t often find us talking about obvious bads. You won’t find much in the philosophy journals arguing that human rights violations are bad, for example. But what you will find are a lot of scholars asking what exactly human rights are, and whether we have any, independent of law. (On the latter question, Jeremy Bentham famously described the concept of natural rights as “nonsense on stilts.”)
There are many obvious bads associated with putting violent male criminals into women’s prisons, which has happened or is currently happening in Canada, the United States, Australia, New Zealand, Scotland, and various other countries. The issue is increasingly on the public’s mind since the Scottish case of Adam Graham made global news earlier this year. Graham, a man found guilty of raping two women, attended court under the name “Isla Bryson,” and was initially sent to a women’s prison. The fallout from that case was so intense that it led to Wednesday’s resignation of Scottish First Minister Nicola Sturgeon, who has for years been demanding a maximalist understanding of trans rights—including the right of self-described trans women to access protected female spaces.
"The resignation of Scotland’s first minister this morning wasn’t exactly a surprise," @HelenLewis writes. "But I had expected that she would stay long enough to live down the failure of her Gender Recognition Reform Bill." https://t.co/ycupRQwdfR
— The Atlantic (@TheAtlantic) February 15, 2023
According to Joan Smith, who wrote about the case for Quillette earlier this month, Graham is not taking cross-sex hormones; and photos of his appearance outside court suggest that he has not had sex-reassignment surgery. Smith notes that “his ‘transition’ consists of nothing more than a new name and an unconvincing wig.” The justification for sending some males to women’s prisons is, ostensibly, that they are women—which is to say, transgender (or transsexual) women. Smith, like many other commentators, questioned both whether Graham is transgender (which given the timing of his court-steps transition, would seem unlikely), and, more generally, whether we should accept a conception of “transgender” so broad that it permits any trans-declared man to gain access to women-only spaces, services, or provisions at any time that suits him.
Joan Smith
In the Australian state of Victoria, we have in place legislation that allows most residents to change the sex listed on their birth certificate on a no-questions-asked basis. British feminists have been fighting hard against similar legislation since 2018. And these laws have more recently become unpopular among members of the broad public, who’ve begun to take notice of their ramifications. (Indeed, it was Sturgeon’s loud and insistent championing of the Gender Recognition Reform Bill—Scottish legislation passed by Holyrood but then blocked by Westminster—that made her politically vulnerable when the Graham scandal became front-page news.) Yet our law in Victoria, the Births, Deaths and Marriages Registration Amendment Act 2019, passed with barely a whisper of protest—likely because there was no public consultation and the public framing of the legislation presented it as a minor legal change that would improve the lives of trans people while having no implications for anyone else.
One benefit of the Victoria legislation—at least on paper—is that it contains more stringent requirements for a change of legal sex (or, as the documentation puts it, an “acknowledgement of sex application”) for those in certain categories: detainees, prisoners, and criminal offenders. People in these groups cannot apply to change their legal sex without written state approval; doing so is an offence, although the fine is fairly minimal. Moreover, the authority receiving the application must not approve it for prisoners if doing so “would be reasonably likely—(a) to be a threat to prison security; or (b) to jeopardise the safe custody or welfare of any prisoners; or (c) to be used to further an unlawful activity or purpose; or (d) to be regarded as offensive by a victim of crime or an appreciable sector of the community.” Roughly the same goes for detainees, prisoners on parole, and offenders on supervision orders. In the latter case, the authority must not approve the application if it “would be reasonably likely … to be used to evade or hinder supervision of the offender during the period of the supervision order or the interim supervision order.” (Convicted paedophiles exploiting the perceived greater trustworthiness of women around children come to mind here.)
These provisions could be invoked to block the transfer of violent male criminals into women’s prisons in Victoria, at least so long as the application is made by a person who is already a detainee, prisoner, or offender. This is as it should be. Survivors of rape and sexual assault are likely to regard it as offensive that their attackers are able to attain the legal status “female.” And, as the legislative drafters have implicitly acknowledged by carving out special categories, putting violent males in jail with women can threaten both prison security and the safety and welfare of female prisoners.
Every ordinary person appreciates this logic, which is why the Adam Graham story proved so politically disastrous for Sturgeon. As Smith noted in her article, if Scotland’s sex self-identification legislation had received royal assent, it likely would have been impossible to remove Graham from the women’s prison and transfer him to the men’s.
Unfortunately, these provisions are not sufficient to keep all violent male criminals out of women’s prisons; for any man who’s made use of the opportunity to change his legal sex prior to finding himself in one of those social categories may count himself as legally female, full stop. For example, there is reason to suspect that Lisa Jones, a convicted male paedophile who sexually assaulted a Melbourne woman, is currently being housed in the Dame Phyllis Frost Correctional Facility (a women’s prison).
The term often used to describe feminists, like me, who reject the idea that acts of declaration can turn a man into a woman is “gender-critical.” As I’ve written elsewhere, we oppose sex self-identification precisely for the reasons described above: it threatens the interests of women across a wide range of applications, including, but not limited to, women’s prisons. Other examples are women’s sports, women-only violence and addiction recovery groups, women’s shelters, and programs that provide dedicated funding to improve the representation of women in areas where they have been historically excluded.
When I have my feminist hat on, all I want to do is stand on the steps of parliament with a big sign reading “no men in women’s prisons.” But when I have my philosopher hat on—which is most of the time—I’m curious about the absolutism of this line. Obviously, women’s prisons are no place for violent male criminals who are exploiting a loophole created to accommodate transsexual and transgender women. But is it true that there should be absolutely no men—i.e., biological males—ever in women’s prisons? Proponents of “inclusive” feminism will say that it’s okay to make exceptions for at least some transsexual and transgender women (that is, people born male who have had sex-reassignment surgery, and/or who simply identify as women). What’s the best case that someone like me can make to justify the complete exclusion of men from women’s prisons?
I can see two ways to make this argument—which break down roughly between an appeal to principle, and an appeal to practical application. The former involves identifying reasons for having women’s prisons, and showing that those reasons would be undermined by the inclusion of any male person. The latter involves considering the kinds of laws or policies that it would be practical to implement and to expect to work, considering all the pressures that bear on prison administration. Perhaps it will turn out that, in principle, a women’s prison could accommodate a few males, and yet in practice the best rule for assigning prisoners to prisons will involve strict sex-segregation before applying any further intake stratification (e.g., assigning prisoners to prisons with different security levels).
Instead of thinking of someone like Adam Graham or Lisa Jones as we engage in this thought experiment, try to instead imagine someone like the character of Sophia Burset in Orange Is The New Black, who was convicted for engaging in credit card fraud when she was trying to finance transition-related surgeries; or indeed someone like trans TikTokker Dylan Mulvaney, who, let’s suppose, has been convicted of a white-collar crime and has no history of violence against women or anyone else.
The argument in principle
In a special 2020 edition of the feminist legal journal feminists@law, Flora Renz—a senior lecturer in Law at the University of Kent—asked: “Can a girls’ school include a boy and remain a single-sex school?” Her idea was that if girls’ schools define themselves by ethos rather than by demographics, then the presence of some boys can be compatible with their identity as girls’ schools. Such an “ethos,” Renz writes, could manifest itself as a desire to “centre female experiences and agency,” “feminist values, including a more group rather than individualistic approach to learning and working,” or “respect for women, female strength and power.” We can make the same philosophical move for women’s prisons, asking what their ethos is, and whether it’s compatible with the inclusion of male prisoners.
In a recent interview, Amie Ichikawa—a former inmate in a Californian prison—talked about incarcerated women being supportive of each other and creating “family” inside prisons, an ethos that seems quite distinct from that of men’s facilities:
There are no separations related to levels—the nature of your crime, race, gang affiliation, nothing—we make it work. There’s people that killed their whole family that are housed with people that stole boxers from Walmart, and it’s alright. Women are nesters, you know. We create families, everybody has a little unit. “That’s my aunt,” “that’s my mom,” “that’s my play sister,” “that’s my uncle.” It happens, and it works.
It’s not clear whether Ichikawa’s description applies to women’s prisons in general, or only one specific prison, or only the specific section within the prison that Ichikawa was housed in. But suppose that it is generally true of women’s prisons. Then we might argue for no exceptions to sex segregation, on the basis that men aren’t “nesters,” and so including men would upset the ethos Ichikawa describes.
But I’m not sure that this is an argument we can expect the general public to accept. What women do with prison life once they’re stuck with it is one thing. What women’s prisons are supposed to do is another. The mere fact that groups of female prisoners have managed to generate support and community in a prison environment is not necessarily sufficient to establish that anyone who would undermine that accomplishment doesn’t belong in the women’s prison. There are surely anti-social women who undermine the ethos that Ichikawa describes, or at least threaten it, and yet they still belong in women’s prisons.
Perhaps we’ll do better by thinking in terms of the justifications for imprisonment: if we know what women’s prisons are there to do, then we can use that as a reference point in figuring out whether accommodating some males would threaten that purpose.
According to the Australian Law Reform Commission, the purposes of sentencing commonly cited in state sentencing acts are retribution, deterrence, rehabilitation, incapacitation, denunciation, and restoration. None of incapacitation, denunciation, and restoration plausibly underwrite the argument for allowing no exceptions to sex segregation. Locking criminals up provides equally effective incapacitation whether the prison is strictly single-sex or permits a few exceptions. Similarly, sending a criminal to prison serves as a denouncement of their criminal actions regardless of whether the prison in question houses men or not. And to such extent as restoration may be achieved in part through imprisonment, that would similarly seem not to depend on the prison’s demographics. That leaves us with retribution, deterrence, and rehabilitation.
Suppose the justification under consideration is retribution or deterrence. We want offenders to have an unpleasant time in prison, in a way that is somehow commensurate with the magnitude of the crime committed (retribution), or in a way that will cause them (and others) to avoid repeating the crime (deterrence). Given that women are generally imprisoned for less severe offences than men, and that, all other factors being equal, a women’s prison is generally a less dangerous environment than its male equivalent, two notable results might occur: (a) women prisoners who are required to be in prison with men will endure more retribution than they otherwise might, and (b) the deterrent effect will be undermined in regard to the male prisoners who inhabit a women’s prison.
What I mean in regard to the first point is that if the correct level of retribution has already been meted out to a woman through a prison sentence, the experience might then be exacerbated by adding in fear of rape, sexual assault, physical violence, coercion, intimidation, and violations of privacy; not to mention the hypervigilance required to manage all of these risks. Whether or not such fears are well-founded relative to any particular male prisoner who is accommodated, they can be widespread among women given their past experiences with males in general, or with male criminals in particular; and can be justified given the greater average physical strength of males over females, which women may reasonably expect men to exploit in order to gain advantage within a prison’s social ecosystem, power hierarchies, and even sexual subculture.
Whether deterrence is undermined for the men who get to serve their sentences in women’s prisons, on the other hand, is an empirical question, one that could be answered by longitudinal tracking of rates of reoffending.
This brings us to rehabilitation, which looks to be the more promising basis for excluding males. On this justification, the aim of imprisonment is to reform prisoners so that once they’re released back into society, they can lead non-criminal lives. Suppose, as seems likely—although it would be hard to prove given that prisons have been single-sex for so long that we’re unlikely to have enough data to permit a comprehensive comparison—that the recidivism rate will be lower among women imprisoned in women’s prisons compared to mixed-sex prisons, because the social dynamics among women are more conducive to rehabilitation than the social dynamics within spaces containing both men and women.
This gives us an “ethos”; the question then becomes whether accommodating a small number of male prisoners would negatively impact the recidivism rate for women. This might be answered empirically by comparing recidivism rates associated with women’s prisons that have strict sex-segregation to rates associated with women’s prisons that accommodate some male prisoners.
The argument in practice
Given the discussion so far, it doesn’t seem unlikely that we can justify complete sex segregation in prisons without exceptions, as a matter of principle. But suppose that we do some of the empirical work, and it turns out that housing some males in the women’s prison doesn’t change the extent to which they are deterred from reoffending, and doesn’t negatively impact women prisoners’ recidivism rates either. Would we then have to accept some males being housed in the women’s prison?
Not necessarily, because strict sex-segregation still might be the best rule to use in a messy, fraught, and chronically under-funded context. Rules are meant to maximize good outcomes, rather than to get every single case exactly right. Most prison guards are men; in Victoria, in 2019, 31 percent of correctional officers were female. If men are more likely to see transsexual or transgender women as women (or as “not men”), then they may be less vigilant about safeguarding in the case of requests for transfer. We might simply weigh up how much can go wrong when the “wrong” man ends up in a women’s prison against how much can go right, and decide that, on balance, such utilitarian weighing supports strict sex segregation.
What’s important about the in practice argument is that it doesn’t require denying that there are plenty of men who really wouldn’t pose a problem in women’s prisons. We don’t have to demonize all men, or apply a kind of biological determinism based on maleness that many of us would thoroughly reject in the case of femaleness. It’s not the case that all men pose a safety threat to women, or even would violate women’s privacy in prison. This is true even of those men who’ve committed crimes. But that doesn’t matter, because strict sex segregation is still a good rule.
Accommodations for transsexual and transgender women can be made, of course. But those should be done within men’s prisons, just as such accommodations are (or should be) made for other categories of vulnerable men. Men with gender dysphoria deserve protection from the risks associated with proximity to other men—just not at the expense of women.
