The missing statistic: assessing Scottish Prison Service policy on transgender prisoners

In late 2018 the Scottish Prison Service (SPS) commented in an online media article that it intended to review its Gender Identity and Gender Reassignment policy. Developed over a seven-year period with the Scottish Government-funded lobby group Scottish Trans Alliance, the policy allows prisoners to be accommodated on the basis of self-declared gender identity. The review is now long overdue. In February 2023, SPS CEO Teresa Medhurst told the Scottish Parliament Justice Committee that she would be ‘very disappointed’ (2023: col. 24) if the review was not published by the end of the year. 

Despite significant political and public interest, systematic information on the transgender prison population in Scotland is limited, making it harder to assess the on-the-ground impact of the SPS policy. Some details are available responses to via parliamentary questions (PQ) submitted by MSPs. For example, a recent PQ by Russell Findlay MSP showed that the seven trans-identified males currently housed in the female estate are all held in relation to (non-sexual) violent crime. More detailed backgrounds relating to individual prisoners can be pulled together from media reports. These show, for example, that the SPS has previously housed men convicted of murder, murder and torture, and sexual assault and voyeurism in the female estate.  

In late 2021 the Scottish Prison Service began to publish very basic data on the number of trans-identified prisoners held in custody, and their location (male or female estate). This can be found as part of the ‘SPS Quarterly Public Information Sheet’ series. The latest publication relates to the period October-December 2022 (Q3). This blog looks at that data and how it is framed or presented.

Ideological framing

SPS data on the number of trans-identified prisoners is published under the heading ‘Social gender’, as part of the Equality and Diversity section. The preamble states:

SPS defines social gender as the gender in which a person lives their day to day life. It may differ from the gender assigned at birth, which is the gender a person was originally registered as on their birth certificate. Non-binary individuals identify themselves as having no gender or as being on a gender spectrum between man and woman. Gender-fluid is defined by “not having only one gender, or moving freely between genders”.

Scottish Prison Service, 2022: 10

As a point of fact, this description is incorrect. Sex, not gender, is observed at birth and recorded on a person’s birth certificate. Other definitions cited, such as ‘gender fluid’, are circular. The term ‘gender spectrum’ is linked to a dated ONS article (‘Sex and gender within the context of data collected for the Sustainable Development Goals’), which – following an intervention from the statistics regulator – no longer includes any definitions, as they ‘do not reflect a current cross-government agreed position’.

In an area of contested debate, it is disappointing that the SPS has chosen to foreground its limited data in ideological language that is more commonly used and promoted by lobbyists advocating against the recognition of sex in law and policy.

Scottish Prison Service data

The SPS report then presents the number of trans-identified males and females as a proportion of the entire prison population:  

In Quarter 3, 7,019 people in our care were recorded as men and another 265 as women. Trans men and trans women comprised 0.04% and 0.16% of the prison population, respectively. Non-binary and gender-fluid comprised together 0.04% of the prison population’.

Scottish Prison Service, 2022: 10

This data is also presented visually (the groups described as Trans Men and Trans Women are presented as having a different ‘social gender’ to men and women).

For the Scottish Government, these figures proved useful in responding to the controversy around the placement of double-rapist Isla Bryson in the female estate. A briefing prepared in advance of First Ministers Questions stated:

Briefing for First Ministers Questions dated 26 Jan 2023

[REDACTED]

Information already publicly available at Official Report – Parliamentary Business : Scottish Parliament

As of 31 December 2022, SPS had 15 trans people in its custody, including 12 trans women and 3 trans men.

That means that trans men accounted for 0.04% of the total prison population, and trans women accounted for 0.16%.

Of the 12 trans women, six are in male, six in female estate. Of the three trans men, one is in the women’s estate, and two in the male.

They were all living in single cells at that point.

Scottish Government, 26 January 2023

For the purposes of the ongoing debate around the placement of trans-identified male prisoners, however, the percentages are at best irrelevant, if not misleading.

The missing statistic

The most relevant statistic here is the number of trans-identified males, as a proportion of the female prison estate. While the SPS do not report this percentage, the publication does provide a breakdown of trans-identifed prisoners by estate (shown below).

Scottish Prison Service, 2022: 11

Cross-referencing the number of trans-identified males held in the female estate (n=6) with the Quarter 3 totals for the female estate shows that trans-identified males accounted for around 2.2% of the occupants of the female estate.

The impact of placing a very small number of men in the female estate is likely to be felt by all women in an affected prison. In other words, the effect is asymmetrical. In practice, this is likely to be felt across all of the very few prisons that hold women.

It is evident from these figures that policies which allow some prisoners to be housed according to how they identify, rather than their sex, already have a disproportionate impact on the female estate, compared to the male estate.

Looking across the prison population as a whole, there is one male who identifies as a woman to every 22 women, and one female who identifies as a man to every 2,343 men. These ratios show the full potential for a differential impact, were all prisoners declaring a transgender identity to be allocated in line with that. Expressed another way, in that scenario, a female prisoner would be a hundred times more likely to encounter someone of the opposite sex, than would a male prisoner.⁽¹⁾

What about trans-identified males held in the male estate?

In explaining why some trans-identified males are still held in the male estate, the SPS state:

When someone is transitioning, the SPS takes a person-centred risk informed decision about the placement and management of that individual. For this reason some individuals are located with their social gender and some are not.

Scottish Prison Service, 2022: 11

We think this fails to convey clearly that, as the SPS has previously acknowledged, some trans-identified male prisoners are held in the estate matching their sex, because they have not requested a transfer to the female estate. At one stage, three of the six trans-identified males held in the male estate had not requested a transfer (see here).

Indeed, at that point, only four trans-identified males were held in the female estate, out of a total of ten (i.e., less than half). This is an important observation because it strongly suggests the needs of trans-identified male prisoners can be met in the male estate, without relying on transfer to the female estate, to the detriment of vulnerable female prisoners. That the SPS continues to hold a substantial proportion of trans-identified males in the male estate, in some cases because this is what those prisoners want, is a point that appears to have been overlooked in the debate over the placement of transgender prisoners.

Looking ahead, the upcoming SPS review of its prison policy will be a significant test of organisational independence and impartiality. That the SPS provides the barest of data, whilst framing it in ideological terms, suggests that it still has some way to go.    

Notes

⁽¹⁾ The 3 prisoners described as “Non-binary/gender fluid” are excluded from the analysis, as SPS does not provide data on the sex of these prisoners, nor the allocated estate.