The SPS Equality Impact Assessment on its trans prisoner policy

This blog looks at the Equality Impact Assessment (EQIA) undertaken by the Scottish Prison Service (SPS) as part of developing its Gender Identity and Gender Reassignment policy.

Background

The SPS website lists all equality impact assessments (EQIA) they have carried out on different policies. No EQIA was listed for the trans prisoner policy. That is still the case today.

On 6 July 2018, we submitted a FOI request to the SPS asking for sight of the equality impact assessment of the trans prisoner policy.

The SPS responded to the FOI on 1 August 2018, with a copy of the EQIA.

Who was involved in the EQIA

The EQIA showed that the policy had been under development since 2007. It listed details of those who had been involved in the EQIA, including the then manager of the Scottish Trans Alliance (Teresa Medhurst, then governor of HMP Edinburgh, is now SPS CEO).

Who was consulted?

The EQIA showed which groups had been consulted as part of the process. The Scottish Trans Alliance and Stonewall Scotland were consulted but no women’s groups were consulted. Later, the metadata from the final policy document showed that its author was James Morton, then Manager of the Scottish Trans Alliance.

Why was the policy introduced

The EQIA stated that: “SPS could be at risk of corporate discrimination if they miss manage [sic] a transgender person.”

What evidence was considered?

The evidence cited included a 2012 report by trans activist organisation GIRES, which was co-sponsored and co-authored by James Morton of the Scottish Trans Alliance. The report does not make any reference to prisons.

The EQIA also referenced a 2012 report from Gendered Intelligence, which makes no reference to prisons.

And referenced the Yogyakarta Principles, which as explained here, are not legally binding:

Strikingly, the EQIA did not reference the 2012 Report of the Commission on Women Offenders (known as the Angiolini Report), published less than two years previously, which had clearly laid out the vulnerability of female prisoners.

Which groups would be affected by the policy

The EQIA asked “Which equality groups will be affected by the new or revised policy/practice?”. It then lists nine protected characteristics under Equality Act 2010, although it gets two of those wrong, using ‘gender’ instead of ‘sex’ and ‘gender identity’ instead of ‘gender reassignment’. The EQIA concludes that only those with the protected characteristics of ‘age’, ‘gender identity’ and ‘sexual orientation’ would be affected by the policy.

The section on the Public Sector Equality Duty concludes that there would be no adverse effects on any groups.

Further consideration of the impact of the policy was mostly concerned with how it would impact on trans prisoners. Under ‘Justification of positive or negative impact’, the document notes “There are people in prison for transphobic crimes”. Under mitigation, the EQIA states: “SPS have a duty of care and will take steps. A trans person should not have any contact or be in the same location at any time with a person who has been charged or sentenced to a transphobic crime.”

The document also states, “There are vulnerable people in prison when faced by a trans person (pre operation) might induce fear to that person”. Under mitigation, the EQIA states: “SPS will take steps to support vulnerable and trans people.”

There is a brief reference to risk assessments: “SPS is aware of the risks presented by trans people and before making a decision have to be aware of all risks. A comprehensive risk assessment will give the SPs protection and protection to the trans person.”

The course of action recommended by the EQIA is to “Proceed with adjustments to remove barriers identified or to better promote equality”. The EQIA does not seem to conclude that the threshold for Outcome 1 has been met.

Amongst the other recommendations, the EQIA notes: “There is no direct evidence that this policy will be discriminatory or will breach any article or protocol in the Human Rights Act.” It concludes that “the new process should not have a detrimental effect on any protect [sic] characteristics in the Equality Act or any Human Rights Articles.”

Monitoring and review

The section on how the policy should be monitored and reviewed states that SPS should “Support trans case conference in prison” and “Monitor numbers of trans people, monitor complaints from trans people”.

Policy implementation

When the policy was launched in 2014, the Scottish Prison Service, working with the Scottish Trans Alliance and Equality Network, produced two videos to demonstrate how aspects of the policy would work in practice. These can be seen here and here.

What about female prisoners?

Whilst there were obvious ramifications for the safety and wellbeing of two vulnerable groups, it is clear from the EQIA that SPS decision-making focused exclusively on the vulnerability of transgender prisoners, to the detriment of both female prisoners and prisoner officers. We wrote about the SPS trans prisoner policy in more detail in 2019, in a paper published by Scottish Affairs, describing the process as one of ‘policy capture‘. A direct line can be drawn from this process, to the events that are currently unfolding in the Scottish prison estate.

Commenting on the unregulated introduction of policies based on gender self-identification, ahead of the law, we concluded:

That such a paradigm shift has taken place without formal scrutiny or proper monitoring, far ahead of legal change, raises a serious question as to why there has been such a persistent failure to consider the possible wider impacts of gender self-identification, especially on women. On one analysis, this simply reflects that women remain, as a group, less powerful than men. From another perspective, this may be read as a story of policy capture that demonstrates how easily systems can be influenced by determined organisations or interest groups, particularly in a small nation. Viewed this way, the analysis shows how a small number of influential actors appear to have secured a monopoly on how sex and gender identity are understood within Scottish policy-making. The analysis also highlights the failure of institutional safeguards (such as EQIAs) designed to ensure that public policies are consistent with the law…

Policy capture has serious social and political consequences. In the case of gender self-identification, it has led to a clear failure to recognise the full range of interests affected. At the wider political level, policy capture can decrease trust in government and erode legitimacy (OECD, 2017: 2010). TheOECD (2017) advises organisations that they should identify and mitigate against policy capture by fostering a culture of integrity and accountability, setting clear standards of conduct and facilitating inclusive decision-making. In this respect, it is troubling that some women have not felt able to articulate their concerns about gender self-identification for fear of repercussions, including loss of employment (Morrison, 2019; Forstater, 2019). This is now a significant challenge for the Scottish Government, which needs to find a way to allow for open debate. The dynamics and processes which have allowed this change to happen on such a scale with so little scrutiny for so many years, also deserve much closer attention, not just to understand the specific vulnerabilities of women’s rights, but also the vulnerabilities of democratic policy-making more generally to single-minded ideologically-driven lobby.

‘Losing sight of women’s rights: The unregulated introduction of gender self-identification as a case study of policy capture in Scotland’, Scottish Affairs, vol. 28, no. 3