What does the Scottish Prison Service really think about the Gender Recognition Reform (Scotland) Bill

On 22 December 2022 the Scottish Parliament passed the Gender Recognition Reform (Scotland) Bill. The Bill amends the Gender Recognition Act 2004 for Scotland, allowing any person aged 16 years or over to change their legal sex based on a statutory self-declaration. Amendments that sought to introduce additional safeguards were either voted down or deemed inadmissible by the parliamentary authorities and/or Scottish Government.

During the development and passage of the legislation, we, and others, repeatedly expressed concern about the impact of a statutory self-declaration model on the Scottish Prison Service (SPS), which currently accommodates transgender prisoners on a case-by-case, risk assessed basis. We argued that the SPS would be unlikely to maintain this policy in the longer term. In May 2022 we wrote to the SPS in the following terms:

Again, we would strongly urge the SPS to also seek legal advice about the risks that, following reform, any policy that does not give additional weight to GRCs (as per MoJ policy) will become more likely to face challenge, and that a GRC holder could therefore successfully override the individualised assessment the SPS would otherwise have followed. We are aware that at least one law centre in Scotland is actively looking at the scope to bring cases in the general area of transgender rights.

MBM email correspondence, 24 May 2022

Both the SPS and Scottish Government deny this risk.

This blog looks at the development of the current SPS policy and traces a radical shift in the SPS position sometime between 2011, at which stage the SPS clearly believed that the possession of a GRC did determine prisoner placement, and 2014, when the current policy was published. Despite being asked directly, the SPS has refused to explain its change in position. With the safety, privacy, and dignity of vulnerable female prisoners now at stake, we think the SPS needs to be much more transparent about its thinking in this area.     

Current SPS policy

In 2014 the Scottish Prison Service published its ‘Gender Identity and Gender Reassignment Policy’, developed in close association with the Scottish Trans Alliance (STA).¹ This set out that prisoners should be accommodated on the basis of self-declared identity, subject to a risk assessment. Notably, the policy does not account for GRCs in relation to accommodation decision-making. Under ‘Key policy principles’, it states: 

The accommodation provided must be the one that best suits the person in custody’s needs and should reflect the gender in which the person in custody is currently living.

Scottish Prison Service, 2014: 6

In correspondence, the SPS has acknowledged that a GRC may be ‘highly indicative’ in determining accommodation, although any decision would be subject to a risk assessment.  

SPS recognise having a GRC may be highly indicative of the type of estate within which a transgender person should be placed. However, SPS nevertheless consider that we retain the ability to place the individual in an estate which does not correspond to the gender on their GRC, where through the case management process we determine that to do so could put the individual or others at risk.

Sue Brookes, Interim Director of Strategy and Stakeholder Engagement, email correspondence, 9 May 2022

Similarly in giving evidence to the Equalities, Human Rights and Civil Justice Committee, SPS Official James Kerr acknowledged that possession a GRC would act as ‘a consideration’ among other issues (Kerr, SP Official Report 7 June 2022: col. 10); but that the SPS did not anticipate that reform would have a significant impact : 

We do not think that there be will any major impact on our response and approach to supporting transgender people through custody. There may be a slight increase in numbers as a consequence of that but, as I said, we are confident that we can provide a response.

Kerr, SP Official Report 7 June 2022: col. 12

SPS policy development

In January 2022 we asked the SPS to provide copies of all previous drafts of its policy, including the original draft outline, and separately, all correspondence with the STA in relation to policy development. The request for previous drafts elicited only two versions: one dated 3 March 2011 (here); the other dated 12 August 2011, which is described as the ‘Final Consultation Draft’ (here). It held no records of correspondence with the STA. We appealed both decisions. In relation to the request for previous drafts, we stated:   

We understand that work on this policy began in 2007 and the final policy was published in 2014. It seems highly unlikely that only 2 drafts exist, the first of which took around 4 years to produce, and then following the consultation draft, that it took a further 3 years before the next and final policy was published. We refer you to this description in a paper by Cowan et al. which refers to multiple draft versions of the policy and describes “countless revisions”. We note also that one the co-authors of the paper was an STA staff member, and that the account given is backed up with reference to correspondence between the two organisations.

MBM correspondence, 24 February 2022

The SPS could however provide no further documentation, explaining ‘as a result of changing personnel and the publication of the final policy document in 2014, it is reasonable to assume that all previous drafts were deleted after a period of time from our corporate records’ (SPS 24 March 2022).

Nor could the SPS locate any correspondence, after a further search. This is surprising given that the former STA manager James Morton wrote the draft policy outline (Cowan et al. 2020, see notes below) and is cited as the author in the document metatdata for both draft versions and the final policy.

The loss of earlier drafts and key correspondence is of particular significance here because of substantive changes made to the policy as it relates to the effect of GRCs on prisoner accommodation, in the period between the consultation draft (August 2011) and the final published policy in 2014.   

2011 draft policy: GRCs determine the placement of transgender prisoners

The August 2011 draft SPS policy stated that a person’s self-declared gender identity could inform the placement of prisoners, although this was cautiously framed:

Once the prisoner has permanently changed the gender in which they live, a gender reassignment case review conference should be convened to reconsider searching procedures and establishment allocation. It is very important that a prisoner living permanently in a new gender is treated by the Scottish Prison Service as being that new gender wherever possible and certainly for communication and records. However, it is possible to treat the prisoner differently from other prisoners in limited single sex service provision circumstances, such as for accommodation purposes, if this is a proportionate way of achieving a legitimate aim such as prisoner safety.

The appropriateness of transferring, to a different gender of establishment, a prisoner who has permanently changed the gender in which they live should be considered carefully in terms of the usual risk assessments and via a gender reassignment case review conference which takes into account the prisoner’s viewpoint and the viewpoint of any gender reassignment medical specialist who has assessed the prisoner’s gender reassignment needs

2011: 32-33 emphasis added

However under the heading ‘Confirming additional privacy and gender recognition rights under the Gender Recognition Act 2004’, the draft policy categorically stated that the possession of a GRC determined prison allocation and searching:

If a prisoner chooses to provide evidence that they have received full legal gender recognition of their permanent change of gender, they can do so either by showing their new birth certificate with their new acquired legal gender on it, or by showing their gender recognition certificate. If such evidence is provided by the prisoner, then it is particularly vital that service providers treat them as their acquired legal gender for all purposes, including establishment allocation and searching, and also that service providers fully uphold their additional rights to privacy about their previous gender history as provided under the Gender Recognition Act 2004.

Alignment with England and Wales

At this stage in 2011, the draft SPS policy aligned with Ministry of Justice policy, ‘The Care and Management of Transsexual Prisoners’ (PSI 07/2011) issued in the same year. Drawing on case law, the MoJ policy set out a detailed, if stark, explanation of its position:

D.7. There are some women who are guilty of violent crimes against other women and are still managed safely in the female estate. Any transsexual women with a gender recognition certificate who pose similar risks should be managed in a similar way in the female estate. In a judicial review of September 2009 (R (on the application of AB) v Secretary of State for Justice [2009] EWHC 2220 (Admin)) the judge held that a male to female transsexual prisoner with a gender recognition certificate had to be transferred to the female estate even though one of her index offences was attempted rape of a woman.

D.8. In a few very rare cases it may be necessary to refuse a transfer to the female estate for a male to female transsexual person with a gender recognition certificate. This can only happen if the security concerns surrounding the prisoner are sufficiently high that other women with an equivalent security profile would also be held in the male estate. If a transfer is refused, the prisoner will be a female prisoner in the male estate. She must be held separately and according to a female prisoner regime as set out in PSO 4800.

PSI 07/2011, 3 March 2011: 15 emphasis added

Whilst the policy framework in England and Wales has since developed, the fundamental principle, namely that GRCs determine the placement of prisoners, remains in place. The current UK policy states:

4.64 The Gender Recognition Act 2004 section 9 says that when a full GRC is issued to a person, the person’s gender becomes, for all purposes, their acquired gender. This means that transgender women prisoners with GRCs must be treated in the same way as biological women for all purposes. Transgender women with GRCs must be placed in the women’s estate/AP unless there are exceptional circumstances, as would be the case for biological women.

The Care and Management of Individuals who are Transgender UK Ministry of Justice/Prison and Probation Service 2019, emphasis added

This policy was upheld as lawful in a judicial review in July 2021.

Policy divergence in Scotland

Between 2011 and 2014, the SPS radically altered its position, dropping all references to the relevance of GRCs in determining prisoner placement, as per its current policy.

On 5 April 2022 we raised this change of position with the SPS. We noted that ‘an earlier draft of the Gender Identity policy [obtained through FoI] effectively stated that the SPS would not have discretion in the placement of trans prisoners with Gender Recognition Certificates’, and asked, ‘Would it be possible to provide further information on this shift in position, and the reasoning underpinning it.’

The SPS response (9 May 2022) did not answer this question but instead restated its belief that it could ignore a GRC if it wished. It continued to maintain this position throughout the passage of the GRR Bill.

Conclusion

The current SPS position is likely to be unsustainable, more so following the recent judgment by Lady Haldane in the Outer House of the Court of Session. This ruled that a GRC changes a person’s sex for the purposes of the protected characteristic of sex in the Equality Act 2010, on the basis that when the GRA 2004 says that a GRC has effect ‘for all purposes’, that should be interpreted as broadly as possible, in the absence of any specific prohibition.

The policy audit trail raises serious questions about the rigour of SPS decision making and record keeping in this area. For the STA, the policy appeared to act as a bridgehead for its wider ambitions, with female prisoners bearing the brunt of this. In 2018, the then Director of STA, James Morton, wrote:

We strategized that by working intensively with the Scottish Prison Service to support them to include trans women as women on a self-declaration basis within very challenging circumstances, we would be able to ensure that all other public services should be able to do likewise.

Morton, 2018: 13

The records we have accessed are not good enough to confirm if this wider ambition explains the SPS’s decision to stop referring to GRCs as determinative. What is clear is that for a period of time, the SPS viewed GRCs as determining prisoner placement, calling into further question its unwillingness to justify its current position, which denies such an effect. It is also notable that the SPS review of its transgender policy (see further here), due for publication last summer, is now well overdue.

With the safety, privacy and dignity of vulnerable women held in Scotland’s prisons now at stake, the SPS needs to be much more open about its thinking in this area and the risks it believes it is facing.

Note

^1. A published draft of an academic article (Cowan et al. 2020), co-authored by the then STA Justice Policy Officer, states: ‘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. Seven years and countless revisions later, this document had passed through no fewer than a dozen hands, most of whom were non-trans women – the finished document had very little resemblance to the draft outline and had undergone extensive scrutiny throughout the process²¹.’

Footnote 21 reads ‘STA and SPS, personal communication’. Detailed records of the policy process appear only to be available to those who took part on behalf of the STA, which is outside freedom of information legislation.

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, as published by authors. The fourth named author was justice policy officer at the STA at time the article was drafted.