Misgendering as state policy: Transphobia and the expansion of violence against migrants

Interim changes were brought in on 22nd January to the policy governing the treatment of trans+ people in immigration detention. There is no timeline for when new guidance will be brought in to replace previous guidance that governed trans+ people in all kinds of detention, including immigration detention and prisons. Even still, the interim guidance is noticeably worse than the existing guidance, which had already been updated to be more transphobic under the Conservative Government.

Gendered detention

The guidance retains the 2023 changes that a trans woman would be placed in men’s detention if she had “any sexual or violent offence conviction or current charge” and/or had not undergone bottom surgery. It also adds that any trans man without bottom surgery will not be placed in men’s detention. This differs from previous guidance, which stated that a trans man would only be held in women’s detention if he didn’t have a Gender Recognition Certificate (GRC).

This presents worrying moves to discard GRCs as proof of legal gender, ceding ground to transphobic pressure groups who seek to redefine gender in law to only refer to that which was assigned at birth – in other words, removing trans people’s legal gender recognition. Trans+ migrants already face barriers to getting their gender formally recognised in the UK, even where they have gender recognition documents from their countries of origin. Under the previous Government, the number of countries and territories with accepted GRCs was radically reduced. 

Together, a more hostile climate for migrants and trans+ people leaves trans+ migrants increasingly exposed to state violence, with even worse conditions in detention than they already experienced – including being cut off from accessing any kind of transition-related healthcare. As a result, trans+ migrants in immigration detention, some of the most marginalised migrants, are being used as a testing ground for the reduction of rights for trans+ people.

The language enforces harmful gender binaries

A key change in the guidance is a shift from “birth genitalia” to “male/female genitalia.” While the policy itself that mandates misgendering and increased exposure to transphobic violence is harmful enough, this shift in language represents a concerning move to embolden transphobic narratives. The language of gendering sex is not only wrong – sex has never been binary, and the effect of presenting it as such is harmful to intersex people in particular – but also transphobic. The prioritisation of gendered language with regard to sex reflects moves from transphobic pressure groups to radically reduce or remove trans+ people’s rights in the name of fighting for ‘sex-based rights’.

The Government is erasing gender non-conforming people

Notably, the interim guidance completely removes the (short) section on people who don’t have binary genders but may still identify as transgender without the need or desire for documentation as such. This includes non-binary people, genderfluid people, intersex people and “cross dressers,” in the words of the former Ministry of Justice guidance. The exclusion of other genders is also particularly troublesome for trans+ migrants, as many indigenous communities globally have gender identities that fall outside of this. 

Together, the interim policy changes for trans+ people in immigration detention look to be worsening the experiences of trans+ people who are inside – beyond the already poor experiences of all people, cis or trans, who are detained. While formal legislation in other areas has yet to be unveiled with regard to delegitimising legal recognition of trans+ people in the UK, this policy is a way of taking these transphobic steps with less scrutiny, particularly as it takes place in an increasingly hostile climate for migrants. We stand against detention in all its forms, but we still oppose this reinforcement of the cisgender gender binary in state incarceration.

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