Changing the rules

In 2014, the Scottish Prison Service (SPS) published its Gender Identity and Gender Reassignment policy, allowing prisoners to be accommodated and searched on the basis of self-declared gender identity. Work on the policy spanned a seven-year period, in close collaboration with Scottish Government-funded lobby group Scottish Trans, which advocates against the recognition of sex in policy and law (see further here).

In 2011, mid-way through the policy development process, the SPS revised the Prisons and Young Offenders Institutions (Scotland) Rules 2006 (‘the Rules’), which set out statutory rules for managing Scotland’s prisons. Alongside more well-publicised changes around healthcare and prisoner complaints, the revised 2011 rules replaced references to ‘sex’ in the 2006 Rules with ‘gender’. This change affected the categorisation and allocation of prisoners, provisions on searching, and on providing urine samples for compulsory drug or alcohol testing. Annex 1 shows the changes in more detail.

Where is the audit trail?

Prior to making these changes, the SPS undertook a review of the existing 2006 Rules. According to an SPS Q&A, this involved ‘consultation with operational staff and Governors, SPS stakeholders and prisoners’. The SPS then consulted more widely on its proposed changes.

A copy of the consultation form (as completed by the Scottish Public Services Ombudsman) makes no reference to ‘sex’ or ‘gender’. An online response from the Prison Reform Trust also states that there is ‘no mention of searching procedures for transgender prisoners’. These observations strongly suggest that the replacement of ‘sex’ with ‘gender’ was not originally proposed by the SPS, or at least not publicly.

The SPS could not provide an audit trail for the removal of ‘sex’ from the Rules. In response to a Freedom of Information request,¹ the SPS provided a summary of consultation responses which does not discuss changing ‘sex’ to ‘gender’.²

The only specific reference the SPS could locate was to a summary of a meeting with the Governor in Charge (GIC). Under the proposed changes for the classification of prisoners, this states ‘Change the reference to “sex” to “gender”‘. It appears that no position was agreed at the meeting.

What about parliamentary scrutiny?

The Prison Rules are Scottish Statutory Instruments, subject to the negative procedure, which means that parliamentary scrutiny is limited by default. The Scottish Parliament Subordinate Legislation Committee considered the 2011 rules on 4 October 2011. It did not discuss any of the above changes. 

The 2011 Rules are accompanied by an Executive note on the key changes from 2006. The replacement of ‘sex’ with ‘gender’ is only made explicit in relation to searches of prison officers and employees, without any accompanying explanation.

Internal inconsistency

Despite the more or less wholesale replacement of ‘sex’ with ‘gender’ in the 2011 rules, some striking inconsistencies remain.

Anti-discrimination measures

Firstly, the references to ‘gender’ appear inconsistent with the elimination of discrimination rule (rule 6) in the same instrument, which cites the protected characteristic of ‘sex’ under the Equality Act 2010. A question then arises as to whether the rules seek to interfere with the application of anti-discrimination measures in the Equality Act, and if so, whether the rules are within legislative competence.

Sex or gender?

Second, the rules on categorisation and allocation are inconsistent with those on accommodation for female prisoners (accommodation is defined broadly, as ‘the cells or rooms used to accommodate prisoners for living and sleeping purposes’). On one hand, rule 15 on allocation states, ‘Scottish Ministers may set aside particular prisons or parts of prisons for particular categories of prisoners or particular purposes’. Read with the categorisation rule, this appears to provide for the allocation of prisoners based on ‘gender’.

On the other hand, rule 126 states, ‘Female prisoners must not share the same accommodation as male prisoners’ and accommodation ‘must, as far as reasonably practicable, be in separate parts of the prison’. This is found in Part 13, titled ‘Female Prisoners’, which also covers pregnancy (rule 127) and female prisoners’ babies (rule 128). In a separate section on personal hygiene, rule 34 also refers to female prisoners, in relation to sanitary protection. Read together, these provisions support an ordinary language use of the term ‘female’, as a reference to biological sex; which is at odds with the classification of prisoners by ‘gender’ in the same instrument. This fails to provide clear directions for prison managers.

Below the radar

Just as the SPS did not consider the needs of vulnerable female prisoners or female prison officers when developing its 2014 policy, in 2011 it introduced far-reaching changes to the prison rules that blurred the boundaries between men and women, again, to the detriment of female prisoners and staff. These changes, in conjunction with the 2014 policy, left vulnerable women sharing spaces with violent men, and required female officers to search men with fully intact genitalia. In practice, as reported earlier this year, searching male prisoners has often fallen to probationers and less experienced female staff, who ‘have felt forced to do it‘.

It remains open to question whether these legislative changes were made intentionally, to facilitate the 2014 policy. Irrespective of intent, the discreet introduction of language that muddied the differences between the sexes would no doubt have made it easier. That the SPS appears unable to provide an audit trail of its decision-making, beyond a single inconclusive line from one meeting with a prison governor, reflects particularly badly on the organisation.

Where next for the SPS

At the time of writing, the 2014 policy is under review, with publication expected later this year. It is difficult to predict the direction this will take. Despite its commitment to trauma-informed care for female prisoners, as we recently documented, the SPS continues to employ ideological language that is more associated with lobbyists advocating against the recognition of sex in law and policy. That said, the 2014 policy has resulted in significant reputational damage to both the prison service and former First Minster, following the placement of double-rapist Isla Bryson in the female estate.

Recent policy shifts are also relevant here. Following the Bryson controversy, the Scottish Government introduced more restrictive interim measures. These require that male offenders with a history of violence (including sexual violence) against women are, by default, placed in the male estate (subject to exceptions). Although this is an improvement on the 2014 policy, the underpinning assumption that men with a known history of violence towards other men do not pose a threat to women is, we think, at best, naive.

A more restrictive policy introduced at the same time by the Ministry of Justice in England and Wales states that trans-identified males ‘will not be held in the general women’s estate if they retain male genitalia or have been convicted of a violent or sexual offence – unless in the most exceptional cases’ (Ministry of Justice, 2023). This threshold far exceeds the interim measures introduced in Scotland. While the SPS claims to be serious about its commitment to trauma-informed care for female prisoners, it has so far resisted going even this far. As a result, under its interim measures, men convicted of murder and torture continue to be housed in Scotland’s female estate, and indeed serious violent offenders appear to account for all such cases at present. This needs to be widely understood.

Notes

1. The Freedom of Information request asked for copies of all responses to the public consultation on the Rules, and any other information (for example, correspondence and notes) in respect of the changes made to the categorisation of prisoners and searching provisions.
2. Reporting on stakeholder comments, the SPS summary of consultation responses states ‘The Rules permitted the search of a prisoner’s clothing before or after removal by an officer of the opposite sex. This was inappropriate as it conflicted with rules for searching visitors.’ Again, the language used here indicates that changes from ‘sex’ to ‘gender’ were not proposed as part of the original review.
   
   The summary also refers to the fact that some female prisoners are held separately in the male estate. For example, women are held in a separate female wing in HMP Edinburgh (Saughton). It also refers to potentially mixing prisoners for the purposes of community facing prisons..

While there remained a presumption that female prisoners would be kept apart from males, there was a new provision in 13.1 that in some circumstances female could be kept in the same establishment. That was partly to reflect existing practice (female prisoners were already held in some male establishments), but also to reflect the development of the concept of community facing prisons which hold all categories of offenders.

Scottish Prison Service, 2011: 13-14.

Annex 1. Changes to the 2011 rules.

Categorisation of prisoners

Classification refers to the placement or allocation of prisoners, based on risks and needs. The 2006 Rules (rule 13) classified prisoners by ‘sex’, age, offence, period of sentence and previous record.

The 2011 Rules (rule 14) replaced ‘sex’ with ‘gender’ and added a broad ranging reference to ‘any other matter which the Governor considers appropriate’. Rule 15 (2011) provides for the allocation of prisoners, based on rule 14 categories.

Male and female accommodation

The 2006 Rules (rule 133) stated, ‘Female prisoners shall be accommodated in rooms or cells which are entirely separate from rooms or cells used for the accommodation of male prisoners’. This approach was continued in 2011: rule 126 states, ‘Female prisoners must not share the same accommodation as male prisoners’ and accommodation ‘must, as far as reasonably practicable, be in separate parts of the prison’.   

Searches of individuals

The 2006 Rules stated that prisoner searches must be carried out by prison officers ‘of the same sex’ (rule 106). In 2011, the reference to ‘sex’ was replaced with ‘gender’ (rule 92).

A similar change was made in respect of some visitor searches, (rules 102 [2006] and 106 [2011]), contracted services and health provider searches (rules 104 [2006]and 108 [2011]) and prison officers/employees searches (rules 151 [2006] and 142 [2011]).

Compulsory drug and alcohol testing

In 2006 a prisoner providing a urine sample for the purposes of compulsory alcohol or drug testing could not be required to do so in sight of a person of the opposite sex (rules 108 and 107 respectively). The 2011 rules changed this provision to gender (rules 94 and 93 respectively).