This blog uses material from recently received FoI responses, supplemented by other published and unpublished sources, to consider how the current Scottish Prison Service (SPS) review of its Gender Identity and Gender Reassignment Policy offers a chance to get policy making here back on track, balance the interests of transgender prisoners with those of women prisoners and staff and ensure a complete record is laid down for the future of how decisions were reached.
Original development of the policy
In 2014 the SPS issued its Gender Identity and Gender Reassignment Policy, allowing prisoners to be accommodated on the basis of self-declared gender identity, subject to an assessment in each case before any move.
As explained in a draft article1 co-authored by the justice policy officer at the Scottish Trans Alliance, external lobbyists literally drafted the policy in its initial stages:
‘Like most new policies, the SPS trans policy started with a working group, of which James Morton was a member. As the only trans person and the manager of an organisation specifically set up to support public bodies in developing trans equality policies, Morton was tasked with writing a first draft outline of what such a policy might look like.’
The organisation referred to here is the Scottish Trans Alliance (STA), which is largely Scottish Government funded.
The policy development process thereafter remains unclear. Playing down the significance of the metadata naming Morton as the author of the published policy document, the same article states:
‘Seven years and countless revisions later, this document had passed through no fewer than a dozen hands, most of whom were non-transwomen – the finished document had very little resemblance to the draft outline and had undergone extensive scrutiny throughout the process.’
We submitted a Freedom of Information request for the drafts of the policy, to chart how it had developed, and for any related correspondence between the SPS and the STA. The SPS could only produce two previous versions of the policy. These are a ‘Final draft’ dated 3 March 2011 and a ‘Final Consultation Draft (v2)’ dated 12 August 2011 (Morton is again named in the metadata as the author in both versions).
The unfinished draft dated 12 August 2011 contains a note which states ‘Asked Scottish Transgender Alliance to write the forward‘, raising at least the possibility that the text attributed in the published version to the Chief Executive of the SPS at the time, Colin McConnell, was authored by external lobbyists. The Forward stated: ‘This policy, one of the most comprehensive of its type and [sic] represents the culmination of years of dedicated partnership work by a diverse group of criminal justice sector and equality sector organisations.’
The SPS was unable to locate any correspondence between itself and the STA in relation to the policy. Given that work on the policy began in 2007, with publication in 2014, this leaves an asserted seven years of work with no audit trail of how the proposed policy developed or exchanges between the SPS and the main organisation providing external input.
Where were the women?
In February 2018 a submission to the Scottish Government’s first consultation on gender recognition reform from a group of women’s organisations (Close the Gap, Engender, Equate Scotland, Rape Crisis Scotland, Scottish Women’s Aid, Zero Tolerance) stated:
‘Evidence from The British Psychological Society to the Women and Equalities Committee of the UK Parliament has flagged its worry at the small number of men convicted of sexual offences who (in their words) “falsely claim to be transgender females” in order to secure parole, explain their offending, or get increased access to women and children once they have been released from prison.’
To allay these concerns, the submission stated that a sub-group would be established, in conjunction with the SPS and STA, to share relevant knowledge and insights:
‘We have not been able to gather more detail about this evidence. In order to allay any concerns that may exist in Scotland we have agreed with Scottish Trans that a sub-group of violence against women organisations will pick this up with STA and the Scottish Prison Service to share any knowledge or insight that may support robust protocols for ensuring women’s safety, including trans women’s safety, within the criminal justice system and in the community.’
Nothing appears to be available in the public domain about the work of the proposed sub-group: we are seeking more information from the SPS.
In November 2018, we asked Engender whether it had undertaken any work to consider the impact of the policy on female prisoners. In reply, a representative stated that she was unable to update us on ‘the specifics of our engagement with women in prison‘. She added that the staff member who had been leading work on criminal justice had left the organisation and so was unavailable for discussion about ‘the extent to which we can share details of evidence-gathering, or under which organisations’ auspices this work happened.‘ We were told it was therefore impossible for Engender to disclose anything about what work it had done here.
The first reference to a review
In December 2018 the online news organisation The Ferret reported that the Scottish Prison Service planned to review its policy.
By late 2018, public awareness was growing that the SPS had adopted a policy with a default assumption that prisoners would be housed by gender identity rather than sex, leading in turn to concerns being raised in the media.
However, the main driver of the review appeared to be the management of non-binary prisoners. Commenting in The Ferret, the then Manager of the Scottish Trans Alliance James Morton stated:
‘We’ve been asking the SPS to update its policy for a while. As we have gone through the process since the introduction of the first policy we have noticed what can be improved. For instance, four years ago there wasn’t much known about non-binary, and as more people are now identifying as non-binary that is a bit of a gap.’
At that juncture Scottish Government’s plans to reform the Gender Recognition Act to allow a person to change their legal sex on the basis of self-identification still included the possibility of legal recognition of a non-binary identification in place of either male or female. As the article explained:
‘It is also proposed that Scotland will become the first part of the UK to legally recognise a third gender, for people who do not identify as either male or female, but wish to be recognised as non-binary.’
The SPS also responded to increased attention to its policy by suggesting it would expand the scope of its consultation. In a remarkable admission which made clear that the initial policy development process had not engaged with female prisoners, a spokesperson stated:
‘One of the groups we will be particularly keen to consult is the female prison population, who have not been specifically consulted about this before.’
This lack of attention to the interest of women prisoners became the subject of an article we wrote for the journal Scottish Affairs. We drew attention particularly to the lack of discussion of the impact on women in the Equality Impact Assessment, which unusually for the SPS had not been published and had to be obtained by a Freedom of Information request.
What happened next?
According to The Ferret, work on the review was supposed to start in early 2019. Although, as we set out here, subsequent developments remained opaque, with seemingly inconsistent statements on progress made in the press and by Ministers in the Scottish Parliament.
The SPS finally opened its consultation to invited external stakeholders in December 2021 and to the public in late February 2022. The SPS has also confirmed that ‘the current policy review process, which commenced Spring 2021, supersedes any work undertaken on this policy previously‘.
The scope of any previous work is not known, although it is notable that the current review considers only MtF and FtM transgender prisoners and makes no mention of those with non-binary identities. Whilst framed in the ideological language of ‘cisgender populations’ and largely skirting around references to women, the review also recognises that there are competing interests at play.
This shift in focus may be due to the Scottish Government deciding not to include non-binary identities within its plans for gender recognition reform. It may also be due to more scrutiny being brought to bear on organisations such as the SPS that have introduced policies based on self-declared gender identity ahead of any legal reform.
Issues with the review process
In response to an invitation to participate in the current review we raised several issues with the SPS. These included concerns around the methodology and an apparent imbalance in the approach being taken to the different prisoner groups, with input for female prisoners seemingly limited to a survey, while data gathered from transgender prisoners would include interviews.
We also sought clarity in some areas, such as the membership of the short life working group overseeing the review, and why SPS policy – which treats holding a Gender Recognition Certificate (GRC) as irrelevant – is at variance with the Ministry of Justice (MoJ) policy, which it believes reflects legal requirements, on the placement of prisoners with GRCs. The MoJ policy only allows for discretion in exceptional circumstances for GRC holders.
The SPS response to our letter can be read here. The SPS provides reassurance that interviews will now also be held with female prisoners, in addition to the planned survey, and notes that prison officers interviewed thus far have been ‘candid’ in their responses.
Next steps and interaction with GRA reform
The SPS anticipates publishing its updated policy in late summer 2022. At present, it does not intend to publish its proposal in draft, but simply to gather inputs from various sources, and then issue its revised policy in final, unalterable terms, without subjecting the conclusions drawn from its evidence gathering to any further discussion or consultation. We are not convinced this is a position it will be able to sustain.
Also, at that point the Gender Recognition Reform Bill will still be progressing through the Scottish Parliament, which is expected to introduce the legal recognition of gender based on a system of self-declaration, thereby opening up Gender Recognition Certificates (GRCs) to a much larger, more diverse group of people.
Against this backdrop, it is concerning that the SPS was unable to explain to us why its policy position on GRC holders remains at variance with the Ministry of Justice’s policy, which is based in turn on its understanding of the law. A failure to factor this into any updated policy means that the SPS policy is vulnerable to legal challenge from a GRC holder refused a move. As we have argued previously:
‘At the moment a GRC carries no weight in Scottish prisons; moreover GRC numbers are low enough that it may never have arisen as an issue. However if the threshold for obtaining a GRC is lowered, it becomes much more likely that the prison service in Scotland will be faced with cases which test whether or not a GRC matters arises when a GRC holder is refused a move. The Scottish Prison Service GRC-blind policy is therefore always potentially one judicial review away from requiring rewriting. It might be successfully defended in court, or it might not. The latter outcome would draw on existing case law that the Scottish Government believes to be irrelevant, but has declined to explain why.’
Moreover, although the SPS now asserts that a GRC is irrelevant, it has not always taken this position. In the available drafts of its policy from March and August 2011, a GRC is described as dictating where a prisoner should be accommodated. The August draft states:
Again, we have contacted the SPS to ask for further information on why it dropped this strong line on the effect of a GRC on prisoner placement.
In a recent Times article on the ‘veil of secrecy’ surrounding the introduction of policies based on gender self-identification, Lucy Bannerman wrote:
‘Behind the scenes, the language of biological sex was rinsed from strata of society at a stroke and replaced with the nebulous euphemisms of gender identity. The astonishing thing is not that a lobby group lobbied, but how readily public services rolled over…’
The SPS has reached its current policy position by a messy, ill-documented route, in conjunction with lobbyists. In doing so, it has failed to balance the interests of different groups, as it is required to do under equality law.
As well as reviewing its policy on transgender prisoners, the SPS needs to review its entire catalogue of diversity policies and bring these in line with the Equality Act 2010, to meet its Public Sector Equality Duty obligations (see here and here for misrepresentation of the protected characteristics, and here for details of the SPS relationship with Stonewall).
And having previously acknowledged that discretion may be very limited in relation to the placement of GRC holders and then rowed back on that position, the SPS needs to seriously engage with the possibility that gender recognition reform will make it more vulnerable in this respect.
The current review is an opportunity to get its policy making back onto a balanced footing, systematically conducted, fully owned by the SPS, and properly documented. We hope that opportunity is taken.
1 Cowan, S., Giles, H.J. Hewer, R., Kaufman, B., Kenny, M., Morris, S. and Nicoll Baines, K. (2020) ‘Sex and gender equality law and policy: A response to Murray, Hunter Blackburn and MacKenzie’. Submitted manuscript to Scottish Affairs. The fourth named author was justice policy officer at the STA at time the article was drafted.