A guest blog by Dr Alessandra Asteriti
Dr Alessandra Asteriti has an LLM and a PhD in international law from the University of Glasgow. She has taught human rights law and international economic law in the UK and in Germany.
The Scottish Government fiasco on the case of Isla Bryson brought into sharp relief what feminists have been saying for a long time: that male sex offenders should never be held in the female prison estate, and that no risk assessment can capture the potential risk posed by male offenders in general, when put in a situation in which access to vulnerable women is guaranteed. Clearly the debate turns over what counts as a male and a female in the risk assessment. The Scottish Government made all the usual noises about the assessment being robust. They love this word, politicians, and civil servants. It makes you feel reassured, like being told the foundations of your house are sound. Robust. Strong. Reliable.
Long before the Isla Bryson case made the news, I made a Freedom of Information (FOI) request to the Scottish Prison Service (SPS). A bit of statutory background first. While in England and Wales transgender prisoners in possession of a GRC are allocated in the prison of their acquired gender, in Scotland the prison service does not make a distinction in the treatment of transgender prisoners with or without a GRC. The SPS ‘Gender Identity and Gender Reassignment Policy for those in our Custody’ (2014) recommends the following:
Where a transgender person in custody is still living predominantly in the gender assigned at birth, then establishment allocation should usually be the gender assigned at birth. Where the person in custody is permanently living in their new social gender instead of the gender they were assigned at birth, then establishment allocation should usually be the new gender in which they are living.2014: 25, emphasis in original
The highly subjective nature of these criteria is evident. In this context, I am only interested in pointing out that whether the person in custody has a GRC is not an factor to be taken into account in the decision where to house them.
On 16 January 2020, I sent the FOI request to the SPS. I asked about the risk assessment template: whether it was different for females identifying as males and males identifying as females, and whether it was possible to obtain a copy of it. The other questions present a more limited value to this topic: the first one is now dated, but useful to assess fluctuations in numbers.
- How many transmen (female to male transgender individuals) are held in Scottish Prisons for male inmates currently or within the last 5 years.
- How many transwomen (male to female transgender individuals) are held in prisons for female inmates.
- How many of these transmen and transwomen are currently holders of GRCs out of the total of the transgender prison population.
- What template is used to conduct the risk assessment before placement and;
- whether the template is different for transmen and transwomen.
- How many transwomen have been transferred to male prison after an initial placement in female prisons (if many) and why.
- How many disciplinary or other issues have arisen following placement of transwomen in female prisons.
- If it is possible to see a copy of the template used for risk assessment of transgender inmates.
On 13 February 2020, the SPS replied. These are their answers.
- There is 1 transman in custody in Scottish Prisons.
- There are 10 transwomen in custody in Scottish Prisons with 5 of then located in areas which are designated for female prisoners. There are also 3 people who previously began the gender reassignment process but who now identify with the gender of their birth (but prior to this were identified as Transwomen).
- 1 person currently holds a GRC of the 14 who are currently recorded as having at some stage engaged in the Gender reassignment process.
- Decisions on the most appropriate location to accommodate transgender people in our care are made on an individualised basis after careful consideration of all relevant factors, including risk. Each individual is included in part of the case conference involving 3rd sector partners, NHS and other relevant parties which determines the outcome.
- The process is the same for all transgender people.
- There are 5 individuals who are located in male prisons who are Transwomen.
- This information is not held in the format that can be reported on.
- See attached document.
The answers tell us that of the 14 persons in custody engaged in the gender reassignment process, only one was in possession of a GRC (the information does not state if this was a male or a female).
Question 4 points to the risk assessment process that forms part of the decision about placement. As this is not the only element, we do not know what kind of balancing between perceived need and assessed risk is made. In the policy, the SPS spells out in more detail who are the actors involved in the decision:
The gender reassignment case conferences should involve the following people wherever possible:
- the Unit Manager who has organised the case conference;
- the person in custody concerned;
- the person in custody’s Personal Officer or Key Worker;
- the person in custody’s social worker (if they have one);
- a representative of the local healthcare team;
- the local equality and diversity manager;
- if the person in custody wishes, a representative of a transgender organisation;
- others as required (for example, a manager from another establishment if a transfer is being considered).
It is clear the participation is heavily skewed towards those supporting the transgender individual’s demands as regards placement. It is particularly disturbing to see that transgender organisations can participate. Knowing how vocal they can be, this surely affects the outcome of the process. It is hard to maintain that the SPS can make a decision only on the basis of the evidence when acting under the Damocles’ sword of an accusation of transphobia. In fact it would be interesting to further inquire whether trans rights organisations were involved in the case conferences for the prisoners held at the time, and currently held, within the Scottish prison system.
Before analysing the risk assessment template, it is worth noting that the SPS declined to answer whether disciplinary or other issues arose in relation of transwomen held in the female prison estate. The SPS replied that: “[The] information is not held in the format that can be reported on.“
When declining to answer a freedom of information request, the public body is required to provide a legal basis for this refusal (s17 Freedom of Information Act 2000). The Act provides numerous exemptions (ss21-44) but the SPS does not rely explicitly on any of them, as it was required to do. It could, for example, have relied on s30 (Investigations and Proceedings Conducted by Public Authorities). I could surmise that they did not do so to avoid the impression that any disciplinary or other issues raised to the level of gravity requiring opening an investigation or even instituting proceedings against the relevant individual. In the absence of any information, however, I am not allowed to draw conclusions, but only to make inferences.
The SPS also provided me with a copy of the risk assessment form. Please note that in the entire risk assessment, the birth sex of the person in custody is never recorded. (The form can also be accessed here, via a separate FOI request).
Section 1. Gender identity
This is the first section.
It seems evident from question one that gender identity and social gender are not the same thing. The SPS policy defines social gender as follows:
Social gender is the gender in which a person lives their day to day life. Where a person has transitioned to change their social gender role, then it may also be referred to as their acquired gender or new gender.
They define gender identity as follows:
The term gender identity refers to each person’s deeply felt intrinsic sense of their own gender – of where they sit in relation to being a man or a woman.
The best sense that I can make of this is that social gender matches the supporting evidence for a gender identity declaration or the answers to question 1B. The risk assessment is conducted in fact on the basis of answers to the questions in section one and the person’s social gender. It is not clear what weight is given to the person’s social gender in performing a risk assessment. For instance, is a declaration of female gender identity to be discounted if the evidence of social gender does not support it?
Section 2. Criminal History
Section 2 assesses the criminal history of the individual.
In this section it is difficult to see what relevance social gender would have in assessing the criminal history of the individual. Sex offences (not, as the form would have it, ‘violence against a particular gender’) should be assessed independently from the person’s current social gender, but the reference to it in the Risk Summary does not instil confidence that the risk assessment is conducted without any bias.
Section 3. Mental Health
Section 3 assesses the individual’s mental health. These questions do not seem to pose specific issues.
Section 4. Previous Prison Sentences or involvement in Criminal Justice
Section 4 concerns previous prison sentences or other involvement in criminal justice.
It is quite evident that this section, where active risk could be investigated, focuses on passive risk, that is risk to the transgender individual and not from them (adjustment issues). This focus is maintained on the next section, on safety.
Section 5. Safety
Safety means here only the safety of the transgender individuals, and their feelings in respect to placement are the only elements to be recorded. A history of being a victim of gender violence is taken into account. The history of being victims of gender violence, so common for female prisoners, is not taken into account at all.
Section 6. Current risk levels
The last section assesses current risk levels.
The current risk assessment does take into account active risk (i.e., risk posed to other inmates) though it is difficult to extrapolate this from the questions posed, especially if this is the first time the person is held in custody.
Question 6C, which requires a balancing between security rating and loss of privileges, is problematic. By privileges I assume the form intends those that pertain to all prisoners (such as extra visits, or other conveniences in prison) rather than the specific rights granted to transgender prisoners (such as hormonal treatment). It is more likely that a transwoman would find additional visits more problematic if held in the female estate than in the male estate, as there is only one female-only prison in Scotland, HMP YOI Cornton Vale, but 15 prisons which predominantly hold males. It is hard to envision a situation in which a transwoman would lose the privilege of extra visits by being moved to the female estate.
I would also note (this applies throughout the questionnaire) that it does not capture properly the issues arising in the case of a female transgender person seeking allocation in the male estate. In effect, in her case, there is an inverse relationship between risk and demand. To the extent that her demand to be housed in the male estate is met, the risk that she is exposed to from other prisoners is raised (though risk to others is poorly captured in this form anyway), while the risk she poses to other prisoners is non-existent. In the case of a male transgender person the relationship is direct. To the extent that his demand to be housed in the female estate is met, the risk he poses to other prisoners is raised, while the risk he is exposed to is down to almost zero. The fact that sex offenders have been housed in female prisons can only mean that the risk assessment does not take into account in the same way active risk (risk to others) and passive risk (risk from others).
Once the questionnaire is completed, the assessors are supposed to answer the same three questions for all the six sections. The questions are the following:
- Approve person in custody to live in their Social Gender Yes / No
- Approve person in custody to be transferred to the estate that reflects their social gender Yes / No
- Allow person to be searched in social gender Yes / No
So there are three elements to each: whether the person’s ‘social gender’ is acknowledged, whether the acknowledgement includes transfer to the estate of choice, and whether body searches are performed by guards of the social gender of the person in custody.
As there are six sections in the template, I assume it is within the realm of possibility that three would have negative sections and three positive ones, and I assume in that case the decision would depend on the breakdown between the three questions within each section. This means that the SPS can modulate the treatment with respect to the answers. So technically there could be a transwoman in the female estate that is not searched by female guards, or in the male estate that is allowed to live in the acquired gender, and so on.
The template does not include risk assessment metrics such as the interaction between likelihood and severity of harm. There is no guidance as to how the different elements in the template should be weighted or ranked, nor what level is risk is deemed acceptable. No space is given to setting out control measures or how any risks might be mitigated, nor, clearly, does the template account for the dignity and privacy of female prisoners, beyond immediate safety risks.
A separate FOI response indicates that the risk assessment form was only introduced by SPS following a complaint from within the prison system in 2016. From the details provided, it looks as if a decision on rub down searching was not properly evidenced. This timing means it took the SPS around two years, from the inception of the policy, to introduce the template. The SPS’s notice of action, issued on 17 December 2019, then makes clear that the template was not being used consistently. It states as follows:
To provide consistency, help inform defensible decision making and, to properly record any deviations from the existing policy around self-declared social gender, the following MUST be adhered too.
The existing ‘Risk Assessment for Transgender People in Custody’ form introduced after this particular complaint was made, should be used in all cases when deciding on an individual’s accommodation and searching. (Annex A)
This risk assessment MUST be completed immediately where decisions on accommodation & searching differ from the declared social gender of the individual. In all cases this assessment MUST be completed within 7 days to help inform the ‘Initial Case Conference’ as per the existing policy.
The rationale for this form it appears, is not to ensure that risk to women is managed properly. It is to foreclose the possibility of a complaint from an aggrieved transwoman who wanted to be rubbed down by a female guard. In the end, the only risk the SPS seems to be concerned about, was the risk to themselves.