My Lords, it is normal to say when winding up that it has been an interesting debate. This one has certainly provoked more interest than I had anticipated. I thank my noble friends Lord Cormack, Lord Farmer and Lady Meyer, and the noble Baronesses, Lady Fox and Lady Jones, for their contributions.
I start with the contribution from my noble friend Lord Herbert. I do not do anti-social media—things like Twitter and so on. I am not motivated to move this out of ideology, nor because of what the media say; I am motivated to do it because I have been approached by women in prison who, rightly or wrongly, are afraid for their safety. It is right to say that it is only a small number of trans women in prisons but there are a large number of women who are afraid of them. They may be wrong to be afraid, but it is in their interests that I am working to try to make sure that they no longer have that fear.
The noble Lord, Lord Pannick, said that my amendment would mean that transgender prisoners should either be stuffed into the male estate or put into some ghastly specially segregated facility. He made it sound like something the apartheid regime would invent. That is exactly the current MoJ policy: all transgender prisoners coming into the prison estate start off in the male estate. I am not inventing that; it is the current policy, as my noble friend has said. Some 90% of trans women prisoners stay in the male estate and then some are moved to the women’s estate. They are moved to a specially segregated facility called E wing at Downview. I merely suggest in my amendment that the facilities of E wing at Downview should be extended to house more transgender prisoners.
I think the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Pannick, are acting under the impression that the vast majority of these prisoners have spent a long part of their life as
trans women—that they have had hormone replacement therapy, have had operations and have been living as women for years. That is not the case; as we have seen from Scotland, only one in 12 has. We do not have the figures for England because, understandably, they are confidential, but the anecdotal evidence is that there is no one in our prisons in England with a GRC who has gone through that process, so they are not those who have lived their lives as women for 20 or 30 years.
I say to the noble and learned Lord, Lord Hope, that, if the Government were to go down my route, I perfectly well accept that a system could be built in where someone who has had hormone replacement therapy, has had surgery and has been living as a woman for X number of years may qualify on a risk-assessment basis to classify as a woman, not in biological terms but in terms of being sent to prison.
I say to the noble Lord, Lord Cashman, that it is quite wrong to categorise this amendment as stigmatising trans people as a particularly violent class. That is not the case. I made absolutely clear in my speech that many trans women prisoners could not stay in the male estate because the male prisoners would be violent towards them; they are equally or more capable of violence.
I accept that the court said that what the Prison Service is doing is lawful. On the narrow point of law considered by the court, that is correct, and one would hope that the MoJ would not have a policy that deliberately broke the law. The point of issue here is not ideology but that what is lawful and what is morally right part ways. I urge the MoJ to accept my solution, which lets trans women prisoners live their lives in prison in a safe space, and women theirs. I simply do not understand why the Lib Dems, the Labour Party and some of my own noble friends now dislike women so much that they are resolutely opposed to defending their hard-won rights. I can see how the Government have blundered into this hole, but at least I see signs from them that they have now stopped digging.
I am not going to be successful today, but I say to all my noble friends on the Front Bench, in all departments, that this policy of downgrading the rights of biological sex women is heading for the scrapheap of history. It is not on the side of science, logic, morality or common sense, and everyone outside the political bubble we are in knows that. The battle for common sense and the rights of women will intensify. I conclude by suggesting that all my noble friends and all Ministers should read the excellent article in the Times last week written by my honourable friend Jackie Doyle-Price MP. She said, inter alia:
“Sex is biological and immutable. Gender is social. The two things are distinct. And by conflating sex with gender we have created an inevitable conflict between rights based on sex with those assumed by someone with a transgender identity … We can be inclusive without compromising the rights, dignity and privacy of women.”
Those are wise words. Jackie Doyle-Price is on the side of common sense and history.
I beg leave to withdraw my amendment, not because I am wrong but because I cannot win in the numbers tonight.