R (on the application of Green) v Secretary of State for Justice [2013] EWHC 3491 (Admin)

In brief

Judicial review by a prisoner at HMP Frankland (Category B) living in the female gender role without a gender recognition certificate, challenging the Governor's refusal of a wig, intimate prostheses, tights and access to a specialist online supplier, and alleging direct discrimination under Equality Act 2010 s.13 read with s.29(6) (public functions). Dismissed on all grounds [72], [75]. On policy: PSI 07/2011 required the prison to let her live in her acquired gender, and the court found she was not being compelled to live as a man [43], [60]; but the policy itself permits restriction where a security risk cannot reasonably be mitigated [44], and the refusals of tights and intimate prostheses [47] and of a wig [48]–[51] were justified and proportionate security decisions. The lack of access to a specialist supplier was a departure from policy, lawful under the Lumba test because it met a real need (no prisoner internet access) and was proportionate [55], [58] — with the court warning that a longer-term solution was needed or the policy would become a list of hopes with no practical application [58]. Changing facilities were proportionately managed [57]. On discrimination, the court held the only comparator was a male Category B prisoner not undergoing gender reassignment [66], [68], [70], and found no less favourable treatment — if anything the reverse [69]–[70]. A restriction upheld as justified: useful as a counterweight in proportionality reasoning.

Key provisions

• §66–70 — Comparator for direct gender-reassignment discrimination (EqA s.13 with s.29(6)) : [66] the claimant had the protected characteristic of gender reassignment, and the court held the only possible comparator was a male prisoner not undergoing gender reassignment; [68] relying on Croft v Royal Mail Group plc [2003] EWCA Civ 1045, a female prisoner could not be the comparator absent a certificate; [70] "I have no hesitation in saying the correct comparator is a male prisoner in Category B at HMP Frankland."
• §43–44 — Mandatory policy with a security derogation — the Governor may place security into the matrix : [43] PSI 07 makes plain a prisoner must be allowed to live in the desired gender role, and the Governor was not compelling the claimant to live as a man, but the policy gives leeway on practicalities; [44] "It is plain the policy permits derogation from the provision of certain female items when security considerations outweigh legitimate transgender objectives."
• §47–51 — Tights, intimate prostheses and a wig — restrictions justified on security grounds : [47] tights and intimate prostheses fall within the security exception; [48]–[50] the wig was the issue of greatest concern, and further work was needed to see whether the risk could be mitigated; [51] "My reasoning as to why the no wig policy is right is based upon security considerations that are justifiable and proportionate."
• §55 — Departing from a published policy — real need and proportionality (Lumba) : [55] ordinarily a policy must be followed, applying R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12: "A good reason is one for which there is a real need and is a proportionate departure from the policy having regard to all the circumstances and the legitimate aims of the policy."
• §56–58 — A lawful departure today, with a warning — policy must work in practice : [56] without a specialist supplier the claimant had no access to outsize female clothing; [58] the departure was needed and proportionate at present, but "a longer term solution has to be found or the policy (and it appears to be a very enlightened and good policy) will simply become a pious list of worthy hopes with no practical application."
• §72, §75 — Disposal — claim dismissed on all grounds : [72] the claim fails on all grounds; [75] "This claim for judicial review is dismissed."

When relevant

Any question about the comparator for a direct gender-reassignment discrimination claim where the person holds no gender recognition certificate; any restriction on gender presentation (clothing, wigs, prostheses) or facilities justified on safety or security grounds; prisons, secure and custodial settings; and any organisation departing from its own inclusion policy in an individual case (the Lumba real-need-and-proportionate test at [55]). Useful as a counterweight: a restriction upheld as proportionate, alongside a warning that a policy must work in practice [58].