Changing the prison rules (again)
On the 5 December 2023 the Scottish Prison Service published its Policy for the Management of Transgender People in Custody. The publication revised both the preceding 2014 policy and more recent interim guidelines, hastily put in place in response to the placement of double-rapist Adam Graham/Isla Bryson in the female estate and subsequent backlash to this.
The revised policy provides even fewer protections for female prisoners than the interim guidelines. Whilst both allow or allowed for men with a history of violence to be placed in the female estate, the interim guidelines required Ministerial approval for any transfer from the male estate.1
Under the revised policy, men convicted of ‘any offences that perpetrate violence against a female that results in physical, sexual, or psychological harm or suffering to a female’ will be generally barred from the women’s estate. There is, however, a gaping loophole, which allows a man with a history of violence against women to be transferred to a woman’s prison if ‘the Risk Management Team, and subsequently the Executive Panel, are satisfied there is compelling evidence that they do not present an unacceptable risk of harm to those in the women’s prison’ (Scottish Prison Service, 2023: 6). Unpicking this obfuscating double-negative, this means, extraordinarily, that the SPS believes that there is ‘acceptable risk of harm’. The revised policy also allows for men who are not accomodated in the female estate to mix with women on work parties, activities and programmes (Scottish Prison Service, 2023: 15).
The Equality Human Rights Impact Assessment (EHRIA) on the revised policy explains:
‘The policy outlines a risk assessment process whereby transgender women with VAWG [sic] can be considered for and potentially transferred to the women’s estate where the risk presented may be sufficiently mitigated.’
Scottish Prison Service, 2023: 23
Risks considered by the SPS as part of this assessment process include:
‘examination of the individual’s index offence and criminal history where available (previous prison sentences or involvement in the criminal justice system), and intelligence on current and past behaviour in custody which may indicate VAWG markers, among other evidence’.
Ibid: 39
The SPS state boldly that it is ‘confident that its assessments for placing transgender people are comprehensive and able to filter out those who may seek to abuse the policy to access the women’s estate to harm women’ (Ibid.).
We think this confidence is misplaced. Firstly, risk assessment depends on comprehensive, reliable data, which may not be available. As noted by the former Justice Secretary, ‘the reality has always been that figures drawn from police reports represent only the tip of the iceberg when it comes to the true extent of violence against women and girls‘ (Keith Brown MSP, 29 November 2022). Second, that the SPS has previously housed men convicted of murder, torture, voyeurism, and sexual assault in the female estate does not reflect well on its risk assessment competencies in this area.
Protections for prison officers
The revised policy provides some limited protections for prison officers. As the EHRIA explains, the 2014 policy required female prison officers to search male prisoners with trans identities (and vice-versa) ‘with the intention of respecting the individual’s lived gender’ (2023: 18). This requirement was provided for in the Prisons and Young Offenders Institutions (Scotland) Rules 2011. The blog below provides more background to the prison rules and how the replacement of references to ‘sex’ with ‘gender’ in 2011 paved the way for the 2014 policy:
Rowing back on this principle, the revised policy also provides for searches based on sex.
The EHRIA sets out the background to this change, which appears to relate principally to staff objections, as raised by officers and the Prison Officers Association:
Discussions took place with the trade union side on findings and recommendations of the policy review, especially regarding searching obligations of staff.
Scottish Prison Service, 2023: 7
There were concerns raised by staff about their safety and comfort searching transgender individuals who may be anatomically different from themselves.
Scottish Prison Service, 2023: 19
The EHRIA explains further:
A small number of stakeholders felt that staff should never be placed in the position where they are asked to search someone who is anatomically different to them. Examples were given in relation to the level of discomfort that could be felt from staff whose religious faith would be challenged, and staff who have experienced sexual abuse themselves, particularly women. These stakeholders expressed a concern at the level of trauma that staff could be exposed to as a result of being asked to search individuals in line with their gender identity as opposed to their birth gender. Staff highlighted that SPS should be sensitive to previous experiences of prison staff and should acknowledge that searching anatomically different bodied people could lead to discomfort or the triggering of trauma. Staff wanted to ensure that there were provisions in place to support staff in this position, and also guide staff in making decisions about searching to ensure that staff are protected in such instances. VAWG experts emphasised cautioning against any human resources process that would require officers to disclose past trauma as evidence to be excused from searching transgender individuals.
Ibid. 19
The EHRIA also acknowledges that, given the choice, most officers would not want to search someone of the opposite sex:
… others stated that having an opt-out for officers would potentially open the door to too many officers taking this option and there being no officers available to conduct a search. Evidence from other jurisdictions showed that opt-in or systems which allowed officers to volunteer to conduct searches of transgender individuals in line with their affirmed gender were ineffective and would not able to be operationalised.’ (Ibid.)
These concerns about searching arrangements are not abstract. Earlier this year the Daily Record reported that the SPS required female officers to carry out intimate searches on an exceptionally violent male prisoner, with a trans identity, housed in the male estate:
A Low Moss officer spoke to the Record after discussions with fellow staff members – all of whom believe female workers should not have to carry out full body searches on Scott or any other trans prisoner with male genitalia.
The source said: “This all started last summer when the PR2 system (Prisoner Records) suddenly designated Scott to be a woman, several years after changing name to Tiffany Scott.
Up to then a woman would not have been asked to search the lower half during a full body search, obviously because it would have been totally inappropriate to ask a woman to do that.
But from one day to the next it became inappropriate for male officers to do the searches – and the human rights of the female staff went out the window. It’s mad because nothing else about Scott has changed physically.
She still has the same male parts and several women therefore refused to search Scott. They’ve been told they have to write up their reasons in a paper and submit it to bosses.”
The source said a refusal leads to another woman being asked to do the search – often a probationer if they are available. They added: “No one has been disciplined for refusing but probationers and less experienced staff have felt forced to do it and the entire workforce is supportive of them.
We keep hearing about trans prisoners’ rights – but surely there is a bigger issue with the rights of female prison staff?”
…
Scottish Prisoner Officers Association spokesman Phil Fairlie said he was concerned female staff felt pressurised to carry out intimate searches on Scott, and said: “I will be taking this up with management at the prison.”
Changing the rules (again)
The revised guidance does not allow prison officers to simply opt-out of searching people to the opposite sex; most likely reflecting the risk that, given the option, most officers would do so. Nor does it revert to searching by sex, as provided for in the 2006 prison rules.
Instead, discretion is given to the prison governor to ‘allow a transgender person to be searched by an Officer of their birth sex if it is necessary and proportionate to do so’.
The revised policy on searching will be provided for in law, via secondary legislation to amend the 2011 prison rules. The amendment (SSI 2023/366) will also change the current law on providing samples for drugs and alcohol along similar lines.
The policy note to the amendment explains:
3. The Amendment Rules will make changes to: Rule 92 (Searching of Prisoners); Rule 106 (searching of visitors); Rule 108 (searching of specified persons) and Rule 142 (searching of officers and employees). These Rules currently require prisoners to be searched by an Officer who is the same gender as them. While this may be overridden by a Governor where there are concerns about the searching Officer’s safety or, in the case of a transgender prisoner, that they would prefer to be searched in accordance with their birth sex, the Rules do not currently expressly provide for that. The Amendment Rules will make clear on the face of the Prison Rules that Governors have a discretion to allow a transgender person to be searched by an Officer of their birth sex if it is necessary and proportionate to do so.
4. The Amendment Rules will also make changes to: Rule 93 (compulsory testing for controlled drugs) and Rule 94 (compulsory testing for alcohol), to make clear on the face of the Prison Rules that Governors may allow a transgender person to be observed by an Officer of their birth sex whilst providing a sample for drug or alcohol if it is necessary and proportionate to do so.
Leaving female prisoners behind (again)
The protections for prison officers are welcome, if limited. At the same time, they underscore that the SPS has left female prisoners behind. These women do not enjoy the support of a union nor well-funded lobby groups with strongly embedded links to the prison service. Despite hitching itself to a trauma-informed approach for the care of women in its custody, the SPS continues to prioritise the needs of a small group of men. Instead of asking why it should house any men in the women’s estate (given most male prisoners with trans identities are held in the men’s estate), it has focused its energies on developing a policy designed to give some men a pass.
The SPS could have followed Ministry of Justice policy, which starts clearly from an assumption of keeping all male prisoners who retain their genitalia out of women’s prisons, as well as those with certain known offending histories, and builds in political accountability for any exception made to this:
Transgender women with birth genitalia and/or any sexual or violent conviction or current charge (see Annex D) should not be held in the general women’s estate, unless an exemption is authorised by the HMPPS Director General and the Secretary of State for Justice.
In this way, it could have avoided a blanket ban (the SPS believe such a ban would unlikely meet its human rights obligations: see page 33) whilst providing much stronger protections for the women in its care. That it chose not to is a stark reflection on the value it places on those women.
1. Applicable to men housed in the male estate and newly convicted prisoners.