How the the Scottish Human Rights Commission forgot about women in prison
Introduction
The Scottish Human Rights Commission has an established record of supporting gender self-identification principles in policy and law. Most notably, it supported reform of the Gender Recognition Act 2004 to provide for legal recognition on a self-declared basis, as documented below.
This blog looks at how the Commission responded to an earlier consultation by the Scottish Prison Service on its transgender prisoner policy, and a more recent position statement by the Commission on the human rights of women.
Scottish Prison Service policy review
The Scottish Prison Service (SPS) has an established and controversial record of placing males in the female prison estate, as a matter of policy, dating back to 2014.
In response to increasing criticism, the SPS undertook a protracted review of its policy. This was spurred on in the latter stages by the placement of double rapist Adam Graham (Isla Bryson) in Scotland’s only women’s prison, and the huge backlash to this.
The SPS published its amended policy in November 2023. As before, this allows men to be housed with women. A detailed critique of the revised policy is below.
SHRC submission to the SPS transgender policy review
The SHRC submitted evidence to the SPS policy review in 2022, lending its support to the placement of prisoners based on self-declared gender identity.
In June 2023 we met with the SHRC Chief Executive and Commissioners to discuss our strong concerns about its submission, which we felt was unbalanced, and did not properly consider the impacts on women and girls.
At the meeting we were pleased to be told that the SHRC was considering withdrawing its evidence and submitting a revised opinion.
We wrote to the SHRC in August 2023, with a summary of our key arguments and asked about the status of the SPS resubmission (see below). We do not have a record of a reply.
In October 2023 we enquired again about the status of the SPS submission. Again, we have no record of a reply.
At the time of writing, the 2022 SHRC submission remains on its website.
Failing to protect women
On 27 February 2025 the SHRC Chair Angela O’Hagan gave evidence to the Scottish Parliamentary Corporate Body (SPCB) Supported Bodies Landscape Review Committee. At the meeting, the Chair was robustly questioned by Ash Regan MSP about the Commission’s position on women’s rights, and its apparent absence in this area of policy and law.
Ash Regan (Edinburgh Eastern) (Alba): The committee is interested in the ideas of accountability and scrutiny, and whether you think that those are robust. The Scottish Human Rights Commission was set up by the Parliament to uphold human rights and to ensure that policy meets human rights requirements.
Last week, the EHRC intervened in the wake of the case involving Sandie Peggie and NHS Fife, but I note that we have not heard from you on that case or on single-sex spaces, nor have we heard from you on toilets in schools, the British Transport Police’s intimate search policy or Police Scotland’s policies on sex and gender. I argue that women’s human rights are very much affected by those issues. How, therefore, are you accountable to the Parliament and to the people of Scotland if you are failing to uphold the standards that provide the very reason for your existence?…
In response, the SHRC Chair emphasised that the Commission is not the regulator of the Equality Act 2010. Ms Regan continued:
Ash Regan: Forgive me for interrupting, but I have set out a number of issues. There are many people across Scotland who genuinely feel that women’s human rights are under attack right now across several of those issues, and across other issues that I have not set out. However, I genuinely feel that I am not hearing from the commission on either side of those issues. One way or another, we are not hearing from you, and you are not making interventions on those matters…
In response to further questioning, the SHRC Chair acknowledged that the UN Convention on the Elimination of Discrimination Against Women (CEDAW), and Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (Istanbul Convention) fall within the Commission’s remit, although indicated a lack of engagement in this area.
Professor O’Hagan: As I was going on to say, there are a number of human rights treaties and instruments that the UK has ratified, which we regularly discuss in the commission. As a pluralist commission, we discuss a range of views. We work through the range of relevant human rights instruments that provide instruction on the protection of rights for all, and we take a range of existing legal frameworks into account.
As the previous conversation about the extent to which we are reactive and proactive indicated, we have not been directly engaged by rights holders or public bodies on such matters, and our involvement has therefore not gone beyond providing advice for the legislative process, which predates my time as chair. We have not been engaged in such processes recently.
We ensure that the rights of women are surfaced and foregrounded across our treaty monitoring, and we have recently been engaged in the treaty reporting cycle. Within the next 12 months, the CEDAW process will kick in, and, through that, we will report on the status of the rights of women in Scotland.
SHRC position statement on women’s rights
Following the evidence session, the Chair wrote to the Equalities, Human Rights and Civil Justice Committee to provide a position statement on women’s human rights.
This confirmed that a range of UK-ratified international human rights treaties fall within the Commission’s remit. As noted in the committee session, these include CEDAW and the Istanbul Convention.
What about women’s rights in prisons
As noted above, since 2014 the SPS has, as a matter of policy, placed male prisoners, including those with a history of violence, in the women’s estate. By default, this affects two main groups; prisoners with trans identities and female prisoners. It also impacts on female officers expected to treat trans-idenitifed male prisoners as women, in particular for the purposes of searching, and potentially also on female visitors to prisons, if trans-identified male staff are assigned to searching them.
The 2022 SHRC submission to the SPS policy review is inconsistent with its recent position statement on women’s rights. The analysis undertaken by the SHRC in 2022 made only a passing reference to CEDAW in a footnote, and did not reference the Istanbul Convention. Instead, it relied uncritically on the Yogyakarta Principles, and a lower court judgment that was not appealed and made no ruling on the overall desirability or human rights implications of confining women with trans-identified male prisoners.1
These omissions are reflected in the SPS Equality and Human Rights Impact Statement (EHRIA) on its 2023 policy. Like the SHRC submission, the EHRIA does not reference CEDAW nor the Istanbul Convention, but instead cites the Yogyakarta Principles at length.
Call for review
That neither the 2022 SHRC submission nor the finalised SPS 2023 policy included any analysis of dedicated women’s human rights instruments is indicative of the unbalanced approach taken by both organisations. The obvious relevance of both CEDAW and the Istanbul Convention to the SPS policy is made clear in analyses undertaken in a personal capacity by SHRC Commissioner Dr Claire Methven O’Brien (see here and here).
Minutes of a Special Meeting of the Commission held in February 2025 show that the SHRC has agreed to diarise a meeting with Chief Executive of Scottish Prison Service at an earliest opportunity, and to develop a plan for a Commission-led private roundtable event on sex and gender, with external, invited legal expertise. The minutes note that the discussion was “robust and wide-ranging” but give no indication as to the Commission’s view on sex and gender in relation to prisons.
We have now written to the SHRC to ask if it will withdraw its earlier submission (as it previously indicated it would) and recognise its responsibilities here by subjecting the SPS policy to a thorough review which ensures that the human rights of vulnerable female prisoners and female prison officers are fully and properly taken into account. Our letter can be accessed here.
Notes
- R. (on the application of FDJ) v Secretary of State for Justice. See: Cunningham, N (2023), Sensible people and the law going bonkers, Legal Feminist. ↩︎