How the Scottish Human Rights Commission responded to the placement of men in women’s prisons
Correspondence with the Scottish Human Rights Commission
In June 2023 we met with the SHRC to discuss our strong concerns about its submission (2022) to the Scottish Prison Service (SPS) Gender Identity and Gender Reassignment Policy Review (2023). These included concerns relating to Articles 3, 8 and 10, prisoner vulnerability, the use of activist terminology, reliance on the contested Yogyakarta Principles, which have no basis in law, and a failure to refer to other relevant international instruments. At the meeting we were pleased to hear that the SHRC was considering withdrawing its evidence and submitting a revised opinion.
We asked the SHRC for an update on the status of the revised submission in August 2023 and again in October 2023. We did not receive a reply.
We wrote again in April 2025 and reiterated our call for the SHRC to withdraw its 2022 paper. We also asked that the SHRC ‘subject the SPS policy to a thorough review that 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.
We received a response from SHRC Executive Director Jan Savage on 31 July, as shown below.
Dear Murray Blackburn Mackenzie,
Scottish Prison Service policy review and women’s rights
Thank you for your letter dated 2 April 2025, regarding your 2023 engagement with the Commission about the Scottish Prison Service’s policies on gender identity and gender reassignment. I apologise for the delay in responding.
I welcome your interest in the importance of protecting human rights in Scotland’s prisons, and appreciate your concerns in relation to the collection of data on sex and gender in prisons in Scotland. As you will be aware, this is a complex and evolving area of law, and the Scottish Human Rights Commission is committed to ensuring that duty-bearers are protecting and promoting human rights in their policies and practices.
Since you wrote, we have further discussed with the Scottish Prison Service their policies and practices with respect to sex and gender. On 22 May 2025, our Chair, Professor Angela O’Hagan, wrote to them to ask for further information about how they are monitoring the impact of their policy for Management of Transgender People in Custody, including whether they have published information; whether the policy will be subject to review; and asking them to confirm that they collect data on sex and gender. We have not yet received a response to that letter.
It may also be of interest to you that, per the SHRC position statement on women’s rights published in March 2025, members of the Commission are carefully considering the human rights implications of the judgment of the Supreme Court in “For Women Scotland vs The Scottish Ministers” and continue to engage with a range of stakeholders and duty-bearers on these matters. For example, earlier this Summer representatives from SHRC met a range of stakeholders at a roundtable held by Police Scotland on their review of data collection on sex and gender.
I hope this provides assurance that the Scottish Human Rights Commission is exercising its responsibilities, as per our mandate, with respect to monitoring human rights in prisons and how public bodies are developing their policies on data collection. I thank you again for your continued engagement with the SHRC on these important issues.
SHRC Executive Director Jan Savage, 31 July 2025
Unequal rights
The response does not respond to our main substantive concerns. These are that the SHRC and SPS have both taken an unbalanced approach to the respective rights of women and trans identified men, and that the SPS policy systematically discriminates against women. Nor does the response commit to any sort of independent scrutiny, but instead indicates that the Commission has effectively asked the SPS to mark its own homework. The response explains that the Commission wrote to the SPS on 22 May, asking for further information on several points. These include information on how the SPS is monitoring the impact of its policy, whether the policy will be subject to review; and confirmation that the SPS collects data on sex and gender. The response notes that, over two months on, the SPS is still to respond to Scotland’s national human rights body.
Will the SHRC withdraw its 2022 submission?
The response is silent on whether the SHRC intends to withdraw its 2022 submission to the SPS policy review. As such, we replied to the SHRC asking for clarification on this specific point. In response, the SHRC told us:
It is clear that since 2023, there have been significant development in the law and policy considerations with respect to matters such as the accommodation of transgender prisoners.
As with our March statement, we will ensure that duty-bearers are aware that any further positions or advice from the SHRC on this matter will supersede previous work.
Scottish Human Rights Commission, email correspondence, 1 August 2025
The Commission’s strong attachment to its 2022 submission is both surprising and concerning. Having previously indicated that it was seeking to withdraw the paper, it now appears that the Commission no longer has any position on the placement of male prisoners, including violent offenders, in the female estate.
