5 Essex Court


9 Jul 21 Back to Listing

Alex Ustych successfully represents the Secretary of State for Justice in leading case on the management of transgender prisoners

Following a two-day hearing, the Divisional Court (Lord Justice Holroyde and Mr Justice Swift) refused FDJ’s challenge to the lawfulness of the Defendant's policies relating to the care and management within the prison estate of transgender prisoners. In particular, FDJ challenged the policy in relation to the allocation to a women's prison of transgender women who have been convicted of sexual or violent offences against women. FDJ claimed to have been sexually assaulted by a transgender prisoner. 

The Divisional Court found that the policies which required the initial allocation of transgender women to the female prison estate, without any contrary presumption where their offending history suggested a particular risk to women, were lawful. The judgment noted that the policies required a careful case-by-case risk assessment, with particular emphasis on offending history. While acknowledging that FDJ’s concerns were understandable, the Court noted that the Secretary of State also had to consider the rights of transgender women to live in their chosen gender, and a margin of discretion had to be allowed in striking the appropriate balance.

The judgment involves an examination of the interaction between the Equality Act 2010, the Gender Recognition Act 2004 and the Human Rights Act 1998 (Articles 3, 8 and 14 ECHR) in the context of risk management. 

Alex was led by Sarah Hannett QC.

Alex was recently appointed to the Attorney General’s B Panel of Counsel and is regularly instructed on public law and private law claims concerning transgender rights. He also appeared in R. (on the application of Miller) v (1) College of Policing (2) Humberside Police [2020] 4 All E.R. 31, the leading case on freedom of expression in the context of online discussion of transgender issues.