The Status of Women In Scotland – Prisons

UN Women invited submissions to the Commission on the Status of Women with information relating to alleged violations of human rights that affect the status of women in any country in the world. Our full submission can be found here but we have also turned each section into the following stand alone blog pieces:

Gender Representation on Public Boards Act I All-Women Shortlists I Census and Data Collection on Sex I Hate Crime and Public Order Act I Prisons I Women’s Services and the Genuine Occupational Requirement I Conclusions

  1. In 2014 the Scottish Prison Service (SPS) published its Gender Identity and Gender Reassignment Policy, in which the key policy principle is that: “The person in custody’s gender identity and corresponding name and pronouns must be respected. The accommodation provided must be the one that best suits the person in custody’s needs and should reflect the gender in which the person in custody is currently living…Restrictions to association with other people in custody should be avoided wherever possible.1
  1. In a manner similar to the contested definitions in the Gender Representation on Public Boards Act (discussed in the Gender Representation and Public Boards Act section) the policy describes “living in a new gender” as using “their new name, title and pronoun in all their everyday social interactions with strangers, service providers, friends and family”, as well as having changed the name and gender on documents (except birth certificates). A Gender Recognition Certificate is not required, nor is any surgery or other physical changes.
  1. This policy was developed in partnership with the pressure group Scottish Trans Alliance which is heavily funded by the Scottish Government, and has long lobbied for the principle of self-identification of sex to be the bedrock of policy making in Scottish organisations and Scots law – a position which fails to take into account the importance of biological sex. Their influence went far beyond that of an organisation simply consulted by the SPS: the Manager of Scottish Trans Alliance, James Morton, was cited as the author in the metadata of the policy document.2
  1. Morton further wrote: “We strategized that by working intensively with the Scottish Prison Service to support them to include trans women as women on a self-declaration basis within very challenging circumstances, we would be able to ensure that all other public services should be able to do likewise.3
  1. This “intense” working relationship has resulted in a policy that overrides the single-sex exceptions in the UK’s Equality Act which provide for separate male and female prison estates, and gives weight to the contested concept of “gender identity”, a concept that has no recognition in either Scottish or UK law.
  1. The policy establishes a mixed-sex prison estate by enabling male prisoners who self-identify as women to be accommodated in the female estate – on a case-by-case basis, and subject to risk assessments. Female prisoners who self-identify as men may be similarly accommodated in the male estate, although the policy does at least recognise the high level of concern about sexual assault risk in a male establishment in this scenario.
  1. The mandatory Equality Impact Assessment (EQIA) of this policy was not published by the SPS and it took a Freedom of Information request for it to be made public. The EQIA4 identified only three protected characteristics that could be affected by the introduction of this policy: age, sexual orientation and gender identity (this is the SPS’s replacement term for the protected characteristic of gender reassignment). The box for “gender” (used instead of the protected characteristic sex) was left blank, implying the policy had no conceivable impact on female prisoners. No women’s groups, or any female prisoners, were consulted in the formation of the policy and no evidence was considered relating to the vulnerability of female prisoners. This is despite a major publication, only two years previous, that detailed the much higher rates of mental health problems suffered by women prisoners, compared to the general population, and that women offenders were “often victims of severe and repeated physical and sexual abuse”.5 Research in the Greater Glasgow and Clyde Health Board area found over 80% of women in prison had a past experience of gender based violence.6
  1. There is little publicly available information on how many transgender prisoners are in custody in Scottish prisons – the information is not routinely collected by the prison service, nor how many have transferred, or have been denied a transfer, into the female estate under the SPS policy. It is thought there were 22 males who self-identified as women across the Scottish prison estate in 2019, all of whom were in the women’s estate or looking to transfer into it. This represents 6% of Scotland’s 380 female inmate population.7
  1. Public concern has been rising for some time and numerous media reports warn of significant issues for women prisoners. Paris Green was convicted in 2013 for torture and murder and was initially sent to HMP Cornton Vale, a women’s prison in Stirling. However, within five weeks Green was pursuing female prisoners sexually and so was moved to the women’s wing of HMP Edinburgh while awaiting gender reassignment surgery. Despite further warnings, Green continued to sexually pursue female prisoners and so was eventually moved to the men’s section of the jail in early 2017. Green’s current whereabouts is unknown.8
  1. Alan Baker/Stewart was convicted in 2013 of murder and was reported by the press in 2018 as being held in the women’s wing of HMP Greenock. A source was quoted as saying Baker “is not segregated from female prisoners in the showers and female prisoners are uncomfortable with the policy. The women inmates have had to accept that Stewart is being allowed to live as a woman, despite not having had surgery.” Further media reports claim Baker formed a relationship with a fellow (male) transgender inmate and female prisoners were subject to witnessing the couple openly having sex.9
  1. In June 2019 a whistleblower said the “trans prisoners in Scotland’s female jails had been responsible for a “quite horrific” number of incidents towards women inmates, including threats of rape”.10 The retired governor of a Scottish women’s prison, Rhona Hotchkiss, continues to warn of the dangers to women inmates11 stating, “My experience is that it is always an issue to have transwomen in with female prisoners. I think you have to think beyond the obvious things like physical or sexual threat, which are sometimes an issue, to the very fact of the presence of a male bodied person in amongst vulnerable women causes them distress and consternation”.12
  1. In 2015, the British Association of Gender Identity Specialists (BAGIS) submitted evidence to the Transgender Equality Inquiry undertaken by the UK Parliament’s Women and Equalities Commitiee explaining why it was naive to suggest that “nobody would seek to pretend transsexual status in prison if this were not actually the case. There are, to those of us who actually interview the prisoners, in fact very many reasons why people might pretend this. These vary from the opportunity to have trips out of prison through to a desire for a transfer to the female estate (to the same prison as a co-defendant) through to the idea that a parole board will perceive somebody who is female as being less dangerous through to a [false] belief that hormone treatment will actually render one less dangerous through to wanting a special or protected status within the prison system and even (in one very well evidenced case that a highly concerned Prison Governor brought particularly to my attention) a plethora of prison intelligence information suggesting that the driving force was a desire to make subsequent sexual offending very much easier, females being generally perceived as low risk in this regard.13
  1. Research conducted on publicly available data by the women’s rights group Fair Play For women, and later confirmed by the UK’s Ministry of Justice, showed that 48% of male prisoners who self-identified as women were jailed for sex offences – compared to less than 20% in the general male estate.14 It seems clear one of two scenarios is in place here: either transgender people commit sexual offences at a higher rate than other men, or male sex offenders take advantage of the self-identifying aspects of the prison’s trans policy, for the reasons outlined by BAGIS above. Whatever the correct scenario, the outcome for female prisoners who have no choice but to share accommodation with these male prisoners is very bleak.
  1. The SPS policy also states that prisoner searches are to be undertaken on the same basis of prisoner self-identification: “People in custody should be rubdown and body searched in accordance with the social gender in which they are living, rather than according to their physical body…Any staff concerns about performing searches on transgender people in custody should be initially addressed through the provision of additional staff training and information about gender reassignment and equality requirements.15
  1. Andrew Burns/Tiffany Scott was convicted in 2017 of five charges of assault and remains one of the few prisoners in Scotland subject to an Order for Lifelong Restriction, under which prisoners are only released once no longer considered an “unmanageable risk to public safety”. One appearance at court had to be abandoned after Scott was deemed too dangerous to be tried in public, yet female officers were required to give the prisoner, who was not undergoing any medical treatment to transition gender, intimate body searches. Contrary to the requirements of the SPS policy the female officers defied orders to conduct the search. It is not known whether the officers faced disciplinary penalties for their stance but it is thought they had the support of their trade union.16
  1. In December 2018 it was reported that the SPS planned to review its policy for transgender prisoners, with a consultation to start early in 2019. A spokesperson acknowledged the previous failure to consider women in the policy stating: “One of the groups we will be particularly keen to consult is the female prison population, who have not been specifically consulted about this before. There is an obvious interest and locus for those individuals.17
  1. Unfortunately, that consultation never materialised and some 2.5 years later, despite the Justice Secretary stating the consultation was expected to begin in October 2020,18 we are still waiting for its commencement. It is intolerable that the changes made by SPS’s transgender policy have been touted as progressive but have so badly, and starkly, failed women prisoners and staff, and yet the authorities continue in their avoidance to take steps to address the situation.
  1. A thorough analysis of the SPS transgender policy is given in MBM Policy’s paper which concludes: “The analysis shows that the unregulated roll-out of gender self-identification in Scotland has taken place with weak or non-existent scrutiny and a lack of due process, and that this relates to a process of policy capture, whereby decision-making on sex and gender identity issues has been directed towards the interests of a specific interest group, without due regard for other affected groups or the wider population. The paper raises questions about the adequacy of institutional safeguards against well-organised and highly purposeful lobbying, particularly where any groups detrimentally affected do not have effective representation.19
  1. In England, which operates a stricter transgender prison policy whereby male prisoners are only automatically housed in the female estate if they have a Gender Recognition Certificate, a female prisoner recently sought a judicial review to challenge the policy. The High Court decided that the policy was “capable of being operated lawfully” under the Equality Act but did confirm a conflict between women’s rights and the rights sought by transgender prisoners. The court ruled on “lawfulness, not the desirability” of the polices.20
  1. It remains to be seen whether the petitioner will lodge an appeal to this ruling but we note the fact that the single-sex exceptions in the Equality Act are opt-in protections, and any organisation is free not to make use of them. This may have been a contributing factor to the prison policy being deemed capable of being operated lawfully, in which case our laws are woefully weak in providing the necessary protection of women and girls. Time will tell how the even more liberal policy in Scotland, which relies on self-identification by prisoners, will fare in any similar court action.
  1. Specifically we believe the SPS transgender policy is in breach of 18.8(b) of the European Prison Rules21 and Rule 11(a) of the United Nations Standard Minimum Rules for the Treatment of Prisoners,22 both of which are very clear that male prisoners should be accommodated separately from female prisoners.


  1. SPS Gender Identity and Gender Reassignment Policy 2014, page 6
  2. Scottish Women, 12 September 2018, “Scottish Prison Service Policy written by trans lobby group”
  3. Morton quote from “A Scottish History of Trans Equality Activism” in “Trans Britain: Our Journey from the Shadows” by Christine Burns, 2018
  4. SPS Equality Impact Assessment
  5. Commission on Women Offenders: Final Report 2012
  6. Sexual Health Needs of Women within the Criminal Justice System in Greater Glasgow and Clyde, 2017, page 6
  7. The Times, 19 January 2019, “Scots trans law is threat to women, says ex-head of prison”
  8. TranscrimeUK – Paris Green
  9. TranscrimeUK – Alan Baker/Alex Stewart
  10. The Times, 30 June 2019, “Feminists celebrate U-turn on self-identification in Scotland as women’s prisons review trans policy”
  11. The Times, 19 January 2020, “Scots trans law is threat to women, says ex-head of prison”
  12. For Women Scotland, Video of Public Meeting 31 January 2020 – Rhona Hotchkiss
  13. Written evidence submitted by BAGIS to the Transgender Equality Inquiry
  14. Fair Play for Women, 09 November 2017, “Half of all transgender prisoners are sex offenders or dangerous category A inmates”
  15. SPS Gender Identity and Gender Reassignment Policy 2014, page 26
  16. TranscrimeUK – Andrew Burns/Tiffany Scott
  17. The Ferret, 18 December 2018, “Scots prisons to consult on changes to transgender policy”
  18. Parliamentary Question asked by Liam Kerr
  19. MBM Policy – Losing sight of women’s rights: the unregulated introduction of gender self-identification as a case study of policy capture in Scotland
  20. Fair Play For Women, 06 July 2021, “Transgender prison policy: judicial review ruling”
  21. European Prison Rules 2006
  22. The United Nations Standard Minimum Rules for the Treatment of Prisoner

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Gender Representation on Public Boards Act I All-Women Shortlists I Census and Data Collection on Sex I Hate Crime and Public Order Act I Prisons I Women’s Services and the Genuine Occupational Requirement I Conclusions