Victoria Hewson is a solicitor and co-founder of Radical, a campaign for truth and freedom in the gender recognition debate. She and Rebecca Lowe, her co-founder, alternate authorship of this column on trans, sex and gender issues.

Transgender prisoners hit the US headlines last week, after it was revealed that hundreds of male prisoners in California have applied to transfer to women’s prisons under a law that came into force at the start of the year.

Under the new law, The Los Angeles Times reports: “all inmates will be asked upon admission about their gender identity, their pronouns, whether they prefer the female or male search policy, and if they want to be housed in an institution that aligns with their gender identity”.

It has been disclosed that 261 prisoners have requested to be transferred, of which only six wanted to be moved to a men’s prison. Twenty one requests have already been granted (and none have yet been refused) to trans-identifying male prisoners, meaning they will be moved to women’s correctional facilities, to the horror of many female prisoners and officers.

You may think this is just an example of the “woke” agenda being pursued by Democrats under the Biden administration. But regardless of your views on American politics, you should be aware that the UK has had such policies in operation for several years.

In England and Wales, under the Ministry of Justice and HM Prison and Probation Service’s policy, set out in The Care and Management of Individuals who are Transgender, prisoners are accommodated by default in accordance with their “legal gender”.

This means that biologically male offenders who have a gender recognition certificate (GRC) — and are, therefore, legally regarded as female (for almost all purposes) — are automatically housed in the women’s prison estate. In theory, if these prisoners are determined to pose a high risk to other prisoners, then they could be moved to the male estate. But owing to the policy’s extreme interpretation of the Equality Act (EA), the prison service is only meant to do this if they would take the same step in respect of a high-risk natal female prisoner — to avoid the risk of discrimination on the basis of gender reassignment.

However, male prisoners who do not have a GRC, and are, therefore, still legally regarded as male regardless of how they “self-identify”, may also request a transfer to a women’s prison, if they “express a consistent desire to live permanently in the gender with which they identify, and which is opposite to the biological sex assigned to them at birth”. In these cases, the matter is considered by a specialist board. If the members of the board find strong evidence that the prisoner is “living in the gender they identify as”, they may decide that a male prisoner should be accommodated in a women’s prison.

In Scotland, the policy is even more permissive. The Scottish Prison Service 2014 policy document Gender Identity and Gender Reassignment Policy for those in our Custody is proudly emblazoned with the logos of trans pressure groups Stonewall and the Scottish Trans Alliance. It states that “the accommodation provided […] should reflect the gender in which the person in custody is currently living”. There is no requirement for a GRC.

Both policies bear all-too-familiar hallmarks of regulatory capture: they refer to a person’s sex as “assigned at birth”, and uncritically adopt the ideology of gender identity. Both also purport to treat prisoners in accordance with the requirements of the EA. The England and Wales approach, for instance, proceeds on the basis that “[w]here individuals have gained legal recognition, they must be treated in accordance with their legally recognised gender in every respect” — citing the EA.

But this is, at best, a contestable assertion. Gender reassignment is a protected characteristic under the EA, and discriminating against a transgender person on that basis is indeed generally unlawful. This kind of discrimination is legally permitted, though, where it is a proportionate way of achieving a legitimate goal. Yet there is no evidence in either policy that the prison authorities considered whether excluding biologically-male prisoners from women’s prisons might be a proportionate way of protecting female prisoners and prison officers from the general risk posed to them from male offenders.

Fears about such risk are clearly not just a matter of abstract principle. Nor is it fair to claim, as one often hears, that they must simply be based in transphobic hostility towards transwomen. Rather, these fears stem from the unarguable position that women are at general risk from men owing to biological differences and patterns of offending. It is also important to note that the data on transgender prisoners in the UK prison systems is of poor quality — partly because of the recording of legal gender instead of sex — but that such information that has been pieced together shows that up to half of transwomen prisoners are sex offenders. Moreover, there have been horrifying documented instances of male prisoners who identify as female assaulting the women with whom they have been imprisoned.

On topic, you may have heard the news that a female prisoner who was sexually assaulted by a transwoman prisoner (who was serving a sentence for serious sexual offences against women and a child) has applied for a judicial review of the policy in England and Wales. The case derives from the claim that the policy indirectly discriminates against women, and violates their human rights, such as the right not to be subject to torture, or inhuman or degrading treatment or punishment. The application was heard in early March this year. The transwoman prisoner concerned was still at that time being held in the general population of a women’s prison.

The issue is complex, not least because there are clear risks for transwomen prisoners in men’s prisons. But what is not clear is why those prisoners’ interests should be (seemingly unquestioningly) prioritised over the interests of the vulnerable women in women’s prisons.

The MoJ argues that a legitimate aim of its policy includes “facilitating the rights of transgender people to live in and as their acquired gender (and) protecting transgender people’s mental and physical health”. This is may well be a legitimate aim — but it cannot be the only legitimate aim of the policy. Why have the MoJ, and UK prison services, defaulted to the assumption that biological women prisoners must be placed at any level of increased risk, in order to protect a certain category of male prisoners, many of whom have been convicted of violent or sexual offences, without even considering the exceptions available under the EA that allow for separate provision by sex?

In light of all of this, it is extremely disappointing that the chair of the Commons’ Women and Equalities Committee takes such a flippant and ill-informed view on the issue, claiming that concerns about transgender prisoners reduce to one isolated case.

It is also interesting to reflect on how recently overturned demands to introduce self-ID — both in relation to the Gender Recognition Act, and to the collection of Census sex data — would have played out in this context. The current “prisoners dilemma” exemplifies how distorted sex data, the GRA’s poor drafting, and questionable interpretations of the GRA and the EA by authorities, are already placing biological women at serious risk.