Was the Scottish Prison Service transgender prisoner policy a done deal?
This week the Scottish Parliament Criminal Justice Committee will take evidence from Scottish Prison Service (SPS) CEO Theresa Medhurst and the Cabinet Secretary for Justice on the revised SPS policy for transgender prisoners. Ahead of the session, on 13 December 2023 the Justice Committee Clerks invited 16 organisations, including ourselves, to provide written evidence to the Committee.
This blog looks at which organisations the Scottish Prison Service approached as part of its policy review, who the Justice Committee approached, and who responded to the respective calls.
SPS policy review
In December 2021 the Scottish Prison Service (SPS) Interim Chief Executive wrote to the Cabinet Secretary for Justice with a progress report on the policy review of its transgender prisoner policy. At this point, the SPS had ‘undertaken an options appraisal of arrangements for engaging identified stakeholders, service users and staff in this policy review’ and ‘made initial contact with some identified stakeholders to confirm nominated leads for engagement’. An Annex to the letter set out a list of 31 stakeholders to be invited to take part in one-to-one discussions, as part of the policy review.
The revised SPS policy was finally published in December 2023 and met with a largely critical reception. In brief the policy excludes men with a history of violence from the women’s estate, unless the risk is deemed ‘not unacceptable’ (i.e. the SPS believe an acceptable risk level exists). For those men with trans identities not housed in the female estate, it provides access for ‘mixing’, for the purposes of affirmation. As a Guardian headline put it, ‘Trans inmates with history of violence against women to be mostly kept out of female Scottish jails’ (emphasis added).
We think it is likely that the SPS reached its final policy position, based on gender self-declaration, ahead of the policy process. As noted in our submission to the Criminal Justice Committee, despite consulting more widely compared to its previous policy, the SPS has ignored a swathe of relevant evidence and human rights instruments on the distinctive needs and position of women.
SPS approach to organisations
Information on who took part in the SPS policy review can be found in the Equality and Human Rights Assessment accompanying the revised SPS policy. This explains that 37 external organisations and agencies were invited to participate in interviews, although fewer than half (18) took place.
Three organisations provided written submissions (His Majesty’s Inspector of Prisons Scotland (HMIPS), the Scottish Human Rights Commission (SHRC) and Families Outside) but the SPS has not published these. Scottish Trans also provide a written submission, but this is not disclosed in the EHRIA; it is only known about because the organisation included it in its submission to the Criminal Justice Committee.
Internal engagement included the Prison Officers Association (minutes are available on the POA website, for example here, here and here), Prison Governor’s Association, and staff networks.
An additional public consultation exercise ran for just four weeks on the SPS website. This asked two questions, with responses limited to 300 words respectively. The exercise elicited just three responses.
Professor of Criminology Jo Phoenix, who has researched and written extensively in this area, contacted the SPS on three occasions to enquire about taking part in the policy review but did not receive a response.
Who engaged on the implications of self-ID in prisons?
The table below summarises who was invited to give evidence by the SPS (as of December 2021), and to the Scottish Parliament Criminal Justice Committee. Those also invited to give written evidence to the Committee are highlighted in yellow. This information is based on a note by the Committee Clerk, detailing who was invited to submit evidence and the submissions received.
The table shows that organisations which have thrown their weight behind the Scottish Government legal gender recognition project appear less willing to follow its logic in the context of prisons, especially in forums where their position can be properly interrogated. Or, it may be that the policy outcome was simply viewed as a fait accompli.
Of the eleven groups supportive of self-identification, only three took part in the SPS policy review (Rape Crisis Scotland, Scottish Trans Alliance, and Victim Support Scotland). Neither Stonewall Scotland, Engender, nor LGBT Youth Scotland (whose age remit extends to 25 years) participated.
Only one organisation supporting self-identification submitted written evidence to the Committee. This was from the group (Scottish Trans) most closely involved in promoting self-identification in prisons, and even this was submitted late. Neither Rape Crisis Scotland, Scottish Women’s Aid, nor Engender took part, despite a clear locus here.
Given the striking lack of input or engagment here from similar minded organisations, Criminal Justice Committee members may wish to ask the SPS if its self-identification policy was a done deal from the start.
Table 1. Invitations and submissions to the SPS policy review and Criminal Justice Committee
Notes
Sources: available here.
Organisations highlighted in yellow were also invited to give evidence to the the Criminal Justice Committee. Professor Jo Phoenix also provided evidence to the Justice Committee.
* Organisations that gave evidence to the SPS policy review but are not listed on the SPS Annex A as of December 2021.
1. Equate is a charity that advocates for women and girls in STEM (Science and Technology) subjects. Its locus here is unclear, although we note Equate was part of a joint submission from funded women’s groups to the first Scottish Government consultation on gender recognition reform, in support of self-identification.
2. SWA indicated to the Justice Committee that it did not want to give evidence.
3. Women and Girls in Scotland is a voluntary group and currently not active.
4. The EHRC revised its policy position on self-identification as of early 2022.