Scottish Prison Service policy: a stain on Scotland’s reputation

Call for urgent Ministerial action

We have written to the Cabinet Secretary for Justice. In the absence of immediate action by the Scottish Prison Service (SPS), it now falls on Scottish Ministers to use its powers to direct the SPS to operate lawfully, meet its statutory obligations under the Equality Act 2010, and put single-sex arrangements in place throughout Scotland’s prison estate. Our letter is shown below.

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25 April 2025

Dear Cabinet Secretary

We are writing to ask that the Scottish Government take urgent action to direct the Scottish Prison Service (SPS) to meet its statutory obligations under the Equality Act 2010 and put single-sex arrangements in place throughout Scotland’s prison estate that are consistent with the UK Supreme Court (UKSC) ruling in For Women Scotland v the Scottish Ministers.

Mixed-sex prison estate

The 2023 SPS policy operates on the basis of gender self-identification and allows trans-identified male prisoners to be placed in the female estate, providing for a mixed-sex estate.

The Equality and Human Rights Impact Assessment (EHRIA) explains that trans-identified males with a history of violence against women may be placed in the female estate if they do not present an unacceptable risk of harm, and that this is provided for in the Equality Act.¹ This case-by-case interpretation is not consistent with the law as clarified by the Supreme Court.

‘The Equality Act 2010 allows for different treatment of individuals with the protected characteristic of gender reassignment if it is a proportionate means of achieving a legitimate outcome. SPS will seek to exclude transgender women from the women’s estate if the risk they present to women is one which cannot be mitigated through proportionate means. It is the assumption that transgender women who meet certain VAWGs criteria will be excluded from the women’s estate, although there is a process which allows deviation from this if compelling evidence exists that they do not present an unacceptable risk of harm.’ (emphasis added).

The SPS states that its current policy (2023), and its previous policy (2014), meet its requirements under the 2010 Act.

‘The policy seeks to ensure that SPS is fulfilling its obligations under the Equality Act 2010, including the Public Service Equality Duty, as well as obligations under the Human Rights Act 1998 and that our practice is in line with a human rights-based approach and our broader approaches to the management and social rehabilitation of all individuals in custody.’
(page 5)

‘the previous policy functioned generally well and was in line with SPS’s statutory obligations under the Equality Act 2010.’ (page 22)

As above, in our strong view this is incorrect. Following the UKSC ruling, it is categorically clear wherever the Equality Act applies, ‘sex’ refers to biological sex, and where any other basis is used to separate provision for women and men, the result will be mixed sex by definition.

This means that in order to be covered by the protections in the Act that allow for lawful provision of separate and single-sex provision, all prisoners should be housed according to their biological sex. Further, no males should be allowed access to the female estate for the purposes of affirming their self-declared gender identity, as provided for in the current policy. Nor should prison officers undertake opposite sex searches.

2011 Prison Rules: sex and gender

We also draw your attention to the Prisons and Young Offenders Institutions (Scotland) Rules 2011, which set out statutory rules for managing Scotland’s prisons.²

The 2011 Rules contain several inconsistencies. Rule 6 states that the prison Governor must seek to eliminate discrimination, harassment and victimisation against prisoners on the grounds of sex (and other protected characteristics). This terminology is explicitly aligned with the Equality Act 2010.³ Under the title ‘Female prisoners’ (Part 13), 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’. These provisions are consistent with the UKSC judgment. 

At the same time, the 2011 Rules contain multiple references to ‘gender’, which replaced references to ‘sex’ in the previous 2006 Rules. These changes helped pave the way for the introduction of a policy based on gender self-identification in 2014.⁴ They apply to the categorisation and allocation of prisoners, provisions on searching, and on providing urine samples for compulsory drug or alcohol testing.

Secondary legislation is now needed to correct these inconsistencies and bring the 2011 Rules fully in line with the UKSC judgment. We call on you to bring forward such legal instrument as is necessary to achieve this, without delay.

International human rights obligations

The UK is bound by human rights instruments pertaining directly to women, specifically the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which the Scottish Government also aims to incorporate into Scottish Law, and the Istanbul Convention.  

Article 1 CEDAW provides that:

…‘the term “discrimination against women” shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.’

Under Article 2 CEDAW:  

17. States parties also have an obligation to ensure that women are protected against discrimination committed by public authorities, the judiciary, organizations, enterprises or private individuals, in the public and private spheres.⁵

The Istanbul Convention (Council of Europe ‘Convention on Preventing and Combating Violence Against Women and Domestic Violence’) requires parties to take measures to prohibit discrimination against women and provide specialist support services to female victims of sexual and domestic violence.⁶

Despite their clear relevance here, the EHRIA shows that the SPS did not consider either instrument in developing its policy.   

Trauma and vulnerability

In 2019 the SPS published its ‘New Model of Custody for Women’.⁷ Emphasising the vulnerability of women in prison and need for trauma-informed services, this acknowledges that ‘women who have suffered some type of physical or emotional trauma are often hyper-aware of possible danger’, and that ‘survivors of trauma may find it difficult to trust others.’ More recent Scottish research found that 70% of female prisoners reported childhood sexual or physical abuse, and 85% reported adult sexual or physical abuse.⁸

Housing violent men in the women’s prison estate

Wholly at odds with its commitment to a trauma-informed service, for well over a decade the SPS has placed men convicted of murder, torture, sexual offences and assault in the female estate. Media reports show this includes the following cases.

1. Assault and threatening behaviour. Joseph (Nicola) Wilson was housed in Cornton Vale in 2010,⁹ predating the 2014 SPS policy by several years.
2. Murder. Alan Baker (Alex Stewart) was convicted of murder in 2013 and held in the female unit at Greenock prison.¹⁰ In 2024 the Daily Mail reported he remains in the female estate.¹¹
3. Assault, robbery, sexual offences, racially aggravated harassment, dishonesty and threatening police officers. Stuart Kelly (Katelyn Findlay) has over 20 convictions, including sexual offences. He was housed in HMP Corton Vale.¹²  
4. Murder. Richard McCabe (Melissa Young) was convicted of murder in 2014. Whilst on remand at HMP Cornton Vale, assaulted a female officer, biting her stomach.¹³ In 2024 the Daily Mail reported he remains in the female estate.¹⁴
5. Murder and torture. Peter Laing (Paris Green) was convicted of murder and torture in 2013. As of 2024, he remained in the female estate.¹⁵ He was recently charged with assaulting a female prison guard.¹⁶
6. Murder Daniel (Sophie) Eastwood was convicted of murdering a cell-mate when held at a male Young Offenders Institute, while serving a sentence for dangerous driving.¹⁷ When housed in the adult male estate, Eastwood terrorised a female officer, who left her job as a result, and assaulted a male officer.¹⁸ The SPS later housed HMP Eastwood in the female estate.¹⁹ In 2023, he was moved to the male estate.    
7. Threatening and abusive behaviour, including flashing. In 2022 Alan Morgan (Alannah) appeared in court as both male and female. He was held on remand at Cornton Vale.²⁰
8. Voyeurism and sexual assault. Katie Dowlatowski was convicted of offences against young girls. He was held at Corton Vale.²¹

In 2016 and in 2023 it was reported that the SPS required female officers to strip-search Andrew Burns (Tiffany Scott), a serial violent offender with multiple convictions against women.²²

Ministerial action needed

The SPS developed its revised 2023 policy following the backlash over the placement of double-rapist Adam Graham (Isla Bryson) in the female estate. Despite the obvious negative implications for women, the SPS retained the same broad principles as its previous 2014 policy. 

In its bid to embed gender self-identification in the prison service, the SPS has treated female prisoners as collateral damage. It has housed some of Scotland’s most violent men with some of Scotland’s most vulnerable women.

It is a stain on Scotland’s reputation that Scottish Ministers ever permitted this sexist and regressive policy.

In the absence of immediate action by the SPS, it now falls on Scottish Ministers to use its powers to direct the SPS to operate lawfully, meet its statutory obligations under the Equality Act 2010, and put single-sex arrangements in place throughout Scotland’s prison estate.

Yours sincerely,

Dr Kath Murray
Dr Lucy Hunter Blackburn
Lisa Mackenzie

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Notes

1. Scottish Prison Service (2023) Equality and Human Rights Impact Assessment: The SPS Policy for the Management of Transgender People in Custody
2. The SPS is accountable to the Scottish Parliament for the delivery of custodial care in accordance with 2011 Rules. See: Scottish Prison Service Framework Document 2024 (page 3).
3. See: Executive Note: The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2012 SSI/2012/26.
4. See: MurrayBlackburnMackenzie (2023) Changing the Prison Rules.
5. Committee on the Elimination of Discrimination against Women, General Recommendation No. 28 on the core obligations of States parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, UN Doc. CEDAW/C/GC/28 (16 December 2010). 
6. Council of Europe Convention on preventing and combating violence against women and domestic violence (2011).
7. Scottish Prison Service (2019) New Model of Custody for Women.
8. Macmillan et al. (2022) Associations between significant head injury and persisting disability and violent crime in women in prison in Scotland, UK: a cross-sectional study.
9. Daily Record (18 July 2016) ‘I feel I have a future now’: Transsexual ex-con tells how she turned her life around; The Sun (15 February 2011, archived text) Sex-swap fella in women’s nick
10. Daily Record (14 February 2018) Transgender murderer sparks inmate outrage in women’s jail after being crowned prison’s ‘Miss Fitness’.
11. Daily Mail (31 March 2024) Why are three biologically male trans murderers being held with female prisoners in women-only jails?
12. Herald (28 June 2013) Transsexual robber born a man held in Scottish jail for women; Sunday Post (20 July 2014) Transexual caged again.
13. Edinburgh Evening News (7 October 2014) Transgender killer ‘bit prison officer’.
14. Daily Mail (31 March 2024) Why are three biologically male trans murderers being held with female prisoners in women-only jails?
15. Daily Mail (31 March 2024) Why are three biologically male trans murderers being held with female prisoners in women-only jails?
16. The Telegraph (24 March 2025) Trans killer charged with attacking female prison guard in women’s wing.
17. EdinburghLive (4 October 2021) Scottish prisoner claims she is being kept in jail because she changed gender.
18. The Sunday Post (11 February 2018) Notorious murderer Daniel Eastwood changes name and asks to live as a woman at male prison.
19. Scottish Daily Express (4 August 2023) Decision to move controversial Scots trans prisoner to male jail welcomed by campaigners after six years
20. The Courier (2 November 2022) ‘Gender row’ lout from Dundee sentenced for crimes committed as both a man and woman.
21. STV News (1 December 2022) Prison service criticised for moving trans woman to Cornton Vale.
22. The Mirror (1 April 2016) Female prison officers refuse to strip search transgender offender they insist is clearly a man; Express (4 February 2023) Anger of female prison guards who were told to strip search violent transgender convict.