MBM submission to the Criminal Justice Committee on the Scottish Prison Service transgender prisoner policy

12th February 2024 • Criminal Justice   Prisons  

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The following evidence was submitted to the Criminal Justice Committee ahead of its meeting on 11 January 2024. The official report of the meeting can be accessed here.

  • The revised SPS policy has an erratic and opaque history. The SPS first stated it intended to review its policy in late 2018, in comments made to the press, although no visible progress was made on this. In 2020 the then Cabinet Secretary for Justice stated the review was already underway, but this was not taken to completion.
  • The review underpinning the revised policy ran from 2021 and 2023; however, in early 2023 the SPS introduced more restrictive interim guidelines, in response to the placement of double-rapist Graham/Bryson in the female estate and backlash to this.
  • The SPS has consulted more widely on the revised policy, compared to its 2014 policy, but arrived at the same position, based on gender self- identification principles. Prisoners seeking to be accommodated and/or searched based on their gender identity are expected to ‘demonstrate’ their identity, but this is not essential (p.36).
  • More comprehensive operational guidance is provided for in a separate document, but this is not publicly available, putting the detail of the policy beyond scrutiny.
  • The default policy excludes men with a known history of violence against women from the female estate; but provides for transfer if ‘there is compelling evidence that they do not present an unacceptable risk of harm’ (Annex 1). ‘Unacceptable risk’ is not defined.
  • For men not housed in the female estate, access may be provided via work parties, activities, and programmes to allowing mixing ‘with others of their gender identity’ (p.15). We think this risks, at minimum, psychological harm and/or self-exclusion for some female prisoners.
  • The revised policy requires internal authorisation to move a man with a history of violence against women in the female estate. This relaxes the recent interim guidelines, which required Ministerial approval, and removes political accountability.

Equality and Human Rights Impact Assessment

  • This note looks at the underpinning Equality and Human Rights Impact Assessment (EHRIA), which we believe is below the acceptable standard for an organisation of SPS’s size and responsibilities. The assessment ignores or downplays relevant evidence and gives unequal weighting to the vulnerabilities of trans and female prisoners.
  • Limited methodological information is available on the ‘scoping and evidence gathering’ exercise underpinning the policy review. No information is presented on the written survey issued to prisoners, beyond the number of participants and participation rate. Fewer than half of female prisoners completed the survey (40%). It is unclear how the SPS dealt with low literacy rates among the prison population.
  • The SPS also conducted interviews with eleven ‘non-transgender men and women,’ nine transgender prisoners, and 13 staff members. The interview schedules are not available, the breakdown of interviewees by sex is not given, and no detail is provided on the recruitment process, or how interviews were conducted.
  • The SPS published a public engagement exercise on its website, which ran for one month before the review closing date and attracted three responses (p.8). No explanation is given as to why this exercise was undertaken so late in the review process.
  • As part of the policy authorisation process, the SPS engaged with ‘experts in combatting violence against women’ (p.8), including Police Scotland, academia, and two third-sector organisations. Aside from Police Scotland, which promotes self-identification principles, no detail is provided on the other experts.

Incomplete and unbalanced review of international obligations and wider research

  • The Yogyakarta Principles, which promote self-declaration, are cited at length, which the SPS asserts ‘reflects existing international human rights law and best practice’ (p.10-11). These principles are highly contested, do not consider women’s rights, and do not create legal obligations. They are the creation of a self-appointed group of activists.
  • The EHRIA partially quotes Nelson Mandela Rule 11 (pertaining to prisoner categories), omitting the reference to the sex category (p.10). When read in its entirety, the revised policy does not meet the standard on single-sex separation.
  • The UN Rules for the Treatment of Women Prisoners and Non-Custodial Measure for Women Offenders (Bangkok Rules) are not referenced. Guidance on the Bangkok rules published by Penal Reform International (2021) explains how safety is key to women’s needs in prisons, and dependent on separation from men.     
  • Neither CEDAW nor the Istanbul Convention are referenced. The latter requires parties to take measures to prohibit discrimination against women and provide specialist support services to female victims of sexual and domestic violence. Its relevance is underscored by Scottish research which found 70% of female prisoners reported childhood sexual or physical abuse, and 85% reported adult sexual or physical abuse (MacMillan et al. 2022).
  • The EHRIA states ‘Learning was also gathered from published policies and research on policies from other jurisdictions’ (p.8) but does not list the countries or policies.
  • The review of ‘SPS Research, Strategy and Policy’ (p.11) does not include the seminal Commission on Women Offenders report ‘Angiolini report’, the SPS (2019) New model of custody for women, Strategy for women in custody 2021-25, or any other literature on the needs of female prisoners. Given the most controversial policy strand relates to placing men in the women’s estate, these are extraordinary omissions.

Inadequate presentation of consultation results

  • The full results from the prisoner survey are not shown, and the results that are shown are poorly presented. For example, the finding that two-thirds of female prisoners saw the safety of ‘other people in custody’ as important is downplayed as ‘not as important to them as other [unstated] factors’ (p.14).
  • A structured overview of the interview data is not available. Most views cited are broadly attributed to ‘stakeholders,’ ‘staff’ and other categories, without supporting detail.
  • The revised policy is described as ‘backed by the evidence gathered from people and groups interviewed for this review as well as comparative research and assessment of international human rights standards’ (p.12). This ignores critical evidence provided to the review and international rights standards on the rights of women.
  • Written submissions (HM Inspector of Prisons Scotland, Scottish Human Rights Commission and Families Outside) are not published. In June 2023 the SHRC Chief Executive told us the Commission was looking to withdraw its submission to the review (see further here).

Minimising women’s concerns

  • The EHRIA covers a range of concerns relating to women in custody, including those raised by female offenders and prison officers, however these are largely minimised.
  • Women are relegated to a subset of their own sex-class and described as ‘non-transgender women’ (p.12). The fact that transwomen are male is framed as ‘a perception’ (p.20). 
  • The EHRIA uncritically presents stakeholder comments that draw a false equivalence between violent men and violent women, and frame concerns about the former as ‘stigmatising’ (p.21).
  • The EHRIA states ‘Staff… pointed out that violence in prison is not solely motivated by gender, or a person’s status as a transgender person, and therefore blanket approaches for placement of transgender people in custody would not fully eliminate risks of violence’ (p.14). This is misdirection, removing focus from the risk of violence from male prisoners in the female estate.
  • The EHRIA states ‘VAWG experts also stated that no approach, blanket or otherwise, could prevent predatory men from seeking to manipulate the system’ (p.14). This is either untrue (a blanket ban cannot be exploited), or, if an allusion to men other than male prisoners with trans identities, it is whataboutery.
  • The EHRIA states discussions with prisoners found ‘incidents of violence were often preceded by disagreement or tensions which were not typically motivated by gender or transgender status’ (p.14). This is a non-sequitur. Concern around the placement of men in the women’s estate relates to sex-based risks of violence, not motivation related to ‘gender’.   
  • A separate SPS Executive Statement (p.6) asserts a blanket sex-based approach ‘does not enable SPS to adequately consider and manage risk that people may present to themselves or to others, including VAWG’, is counter to ‘obligations placed on the SPS’, and ‘fail to acknowledge gender identity’. This ignores the routine housing of trans-identified men in the male estate.
  • The EHRIA states generalisations about the transgender prisoner population are difficult, given the small numbers (p.37). The relevant risk factor is sex, not gender identity. Canadian Corrections Service prison population data shows gender identity does not override sex (Phoenix, 2023). Longitudinal research by Dhejne et al. 2011 also shows the risk of violent offending among men, including sexual offending, does not change after sex reassignment.
  • The EHRIA refers to commentary made in the FDJ judgement on the high proportion of trans-identified sex offenders in prisons in England and Wales; but only presents the view of the Defendant (p.37). This argued there was no reliable statistical case to show trans-identified male prisoners posed a disproportionate risk of harm to female prisoners (para. 65).The Judge, however, accepted that placing trans-identified men in the female estate carried a higher risk of sexual result, but rejected the more precise risk estimate made by the Claimant (para. 75).
  • The EHRIA uncritically quotes correspondence from the former UN Independent Expert on Protection Against Violence and Discrimination based on Sexual Orientation and Gender Identity, stating that his mandate had not received any information on the abuse of self-identification laws or policies (p.18). This ignores that he strongly advocates for replacing sex with gender identity in law and policy, has overlooked available evidence on the adverse effects of self-identification, and ignored reasons why evidence is hard to obtain.
  • The EHRIA downplays risks associated with the placement of men in the female estate, describing these as ‘perceived’ and a ‘perspective’ (p.38).

Searching

  • The revised policy provides some limited protections for prison staff (see further here). Whereas the 2014 policy provided for searching based on ‘gender’, with the aim of affirming a person’s self-declared identity, the revised policy also allows searching based on sex, at the discretion of the prison governor.
  • The revised policy does not allow female officers to automatically ‘opt-out’ of searching men, and vice-versa (due to the likelihood that most would). An opt-out route may be available via HR; it is unclear if officers will be required to disclose personal details to access this.

Compelled speech

  • The revised policy states ‘gender identity and corresponding name and pronouns will be respected irrespective of where they are accommodated’ (p.2). The EHRIA notes some external stakeholders raised issues around ‘thought policing’ (p.18) and states the ‘challenge will be for SPS and its staff to create an environment and space where open and respectful discussions can happen’ (Ibid.).
  • In practice, the revised policy compels the use of preferred names and pronouns. To this aim, ‘misgendering’ is treated as a potential breach of ECHR Article 3 (p.41).
  • The revised policy bases this on the Forstater ruling; but this did not express a view on how reasonable, or in what circumstances it might be reasonable, for employers to compel others to use preferred pronouns/names. This conflict of rights remains to be tested in the courts.
  • Compelling staff to refer to men convicted of rape (Adam Graham/Isla Bryson) and child abduction and sexually assaulting a child (Andrew Miller) as women is a serious incursion into freedom of expression that raises issues around power and control. That both the former and current First Ministers refused to refer to Bryson/Graham as a woman is indicative of the difficulties here. We note that the current First Minister also stated Bryson was ‘not a genuine trans woman’ and ‘trying to play the system’.      

Loss of transparency

  • In late 2021 the SPS began to publish limited data on the number of trans-identified prisoners and location (male or female estate) (see further here). Data for January to March 2023 shows men with trans identities accounted for around 2.6% of the female estate. Whilst small, the impact of this likely to be asymmetrical, and felt by all women in an affected prison.
  • Under the revised policy the SPS will continue to publish data on the number of transgender prisoners; but no longer specify whether they are housed in the male or female estate, citing guidance published by the Chief Statistician. This is unconvincing, given the SPS publishes prison population data with low values, and raises accountability concerns in a controversial policy area.     

Interpretation of the Equality Act 2010

  • The recent ruling in For Women Scotland Limited v The Scottish Ministers [2023] CSIH 37 confirmed that under the Equality Act 2010 the SPS is fully entitled to treat men with the protected characteristic of gender reassignment, who do not hold a GRC, as male. This provides the basis for a policy founded on a strong assumption against moving men without GRCs into the female estate.
  • The SPS appear to interpret the Equality Act 2010 as broadly permitting male access to the female estate, based on the protected characteristic of gender reassignment, with exceptions permitted on a case-by-case basis, where proportionate.
  • The EHRIA states that in relation to single-sex spaces, the gender reassignment provisions in Schedule 3 para. 28 allow the SPS to ‘provide programmes and services within the women’s estate for women who are not transgender, only if the presence of a transgender woman would prevent the achievement of the aims of the programme or service’ (p.39, emphasis added). This reverses the framing of the legal test, which is a positive one that allows single-sex provision if it is ‘a proportionate means to legitimate aim’.

Privacy protections for GRC holders

  • The EHRIA emphasises the need to ensure information about Gender Recognition Certificates (GRC) is kept confidential but recognises it may need to be disclosed for some purposes. This appears to underscore the relevance of GRCs to prison management. At the same time, the EHRIA states, ‘it is inappropriate, and can be discriminatory, to ask individuals if they have a GRC to prove their legal sex’ (p.18).
  • We note that secondary legislation is currently lodged before the Scottish Parliament (SSI 2023/364), which seeks to exempt SPS staff from penalties for disclosing a person’s GRC status in some circumstances. We could not find a reference to this in the EHRIA.

Unbalanced rights assessment

  • Despite impacting on two vulnerable groups, the rights assessment focuses almost exclusively on the rights of transgender prisoners. The analysis of various ECHR Articles is not mirrored for female prisoners.
  • The EHRIA does not assess international rights standards on the distinctive rights and position of women. As noted by Methven O’Brien (2023), the starting point for these standards, as well as the Prisons and Young Offenders Institutions (Scotland) Rules 2011 (Part 13), is that prisoners should be accommodated on a single-sex basis.
  • The EHRIA states poor mental health rates are higher among the transgender population, compared to the general population, and the revised policy ‘promotes the right to health’ (p.29). It does not discuss the prevalence of trauma and poor mental health in the female prison population, and how this might be exacerbated by placing men in the female estate.
  • The EHRIA states privacy is provided for showering and dressing (p.41). We understand that shower cubicles in the female area at HMP Greenock are not fully enclosed.

Failure to acknowledge recent policy change in England and Wales

  • The EHRIA states the SPS met with Ministry of Justice (MoJ) officials; but does not discuss the revised MoJ policy criteria introduced in early 2023, which provides far stronger protections for women, whilst avoiding a blanket ban. Under this, men are excluded from the female estate, based on either retaining their male genitalia and/or a history violent offending against women. Any exceptions to this require Ministerial approval, therefore providing political accountability.

Failure to acknowledge current policy and practice

Misplaced confidence in risk assessment

  • The EHRIA states that ‘controls and criteria in place will seek to mitigate the risk of predatory transgender women from being placed in the women’s estate and SPS is confident in the robustness of its arrangements’ (p.35). No consideration is given here for factors other than physical safety, including psychological risks and trauma.
  • The risk assessment places a strong emphasis on recorded offending histories; but does not discuss that most violence against women goes unreported.
  • The EHRIA states the SPS believes the previous policy ‘functioned generally well’ (p.22). It is not acknowledged that the SPS was required to put interim guidelines in place, following the placement of a double-rapist in the women’s estate.
  • The EHRIA states further, ‘SPS does not have evidence from its own population in custody that transgender women pose a risk to non-transgender women, or indeed to other transgender women in custody’ (p.37).
  • Cases contrary to this include Daniel/Sophie Eastwood, convicted of murder, and held in Scotland’s female estate. Press reports state that whilst housed in the male estate, Eastwood terrorised a female officer, who left her job as a result. Also, Richard McCabe/Melissa Young, convicted of murder and held at Cornton Vale, where he bit a female prison officer. 

Conclusion

The revised SPS policy on transgender prisoners, despite its focus, involves two vulnerable groups: transgender prisoners and women. Yet despite a lengthy review process, it appears that, for the most part, the SPS has only considered the needs of the former in depth.

We think it is likely that the SPS began its review with a retained commitment to self-identification principles. Instead of asking why any men should be allowed to access the female estate, it has focused on developing a policy that ensured at least some men would be allowed access. To reach this position, it has ignored or downplayed relevant evidence relating to the vulnerability and trauma of women prisoners, male offending risks, and human rights standards. The SPS maintains it cannot uphold a blanket ban on placing men in the female estate but provides no convincing explanation. It maintains a blanket ban is incompatible with its requirement to recognise gender identity; but ignores that trans-identified men are routinely housed in the male estate. It appears to not recognise its own record of placing violent men in the female estate, including those convicted of murder, torture, voyeurism, and sexual assault.   

The EHRIA concluded that the SPS had not identified any potential for unlawful discrimination, adverse impacts, or breaches of human rights articles. It could only realistically reach this conclusion by placing less weight on the rights and needs of women. That the SPS claim its revised policy, which allows for violent men to be housed with women, ‘advances equality and human rights as well as fosters good relations’ (p.43) suggests an organisation that does not understand the conflict of rights underpinning its own policy.   

This is not an isolated case. The same failures are evident in the equality assessments underpinning the two Scottish Government consultations on gender recognition reform. Like the Scottish Government, the SPS fails to understand that concerns about self-identification relate to sex, not gender identity, and that the population-level risks presented by men with trans identities are just the same as other men.

The SPS has taken five years to develop and finalise a policy that disapplies safeguards, designed to protect women, for a small group of men, based on nothing more than a declared and non-falsifiable identity claim.

We would advise MSPs to insist that the current interim policy, devised after the Graham/Bryson case, stays in place indefinitely, until such time as SPS is able to produce a replacement which gives proper weight to the rights of vulnerable women in prison, as the revised MoJ policy does. Any work begun in preparation for bringing the new policy into force next month should be stopped.

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