Policy for the Management of Transgender People in Custody

After the public outcry over Isla Bryson/Adam Graham an interim prison policy was put in place banning all male prisoners from the female estate if they have a history of violence against women. Any transfer required Ministerial authorisation.

However, the Scottish Prison Service (SPS) is introducing a new policy on 26th February which relaxes these rules. The policy involves two vulnerable groups: women and transgender prisoners, yet the safety of women has been overlooked to prioritise maximising the opportunity for trans prisoners to be allocated to the prison estate matching their “gender identity”. Incredibly this extends to allowing men who have been deemed too dangerous to accommodate in the female estate a “day pass” to access activities and to mix with women.

In our newsletter of 15th February we suggested writing to MSPs to urge them to take action to prevent the new policy coming into force. This was the template letter:

I am writing as a constituent to request that you take urgent action to pause the introduction of the revised SPS policy on the Management of Transgender Prisoners. This policy relaxes the interim measures put in place after double-rapist Isla Bryson was sent to a women’s prison and fails to uphold standards relating to female prisoners safety and wellbeing. Among its many problems:

SPS states it separates prisoners by sex but fails to meet the standards of Nelson Mandela Rule 11 and the Bangkok Rules. It does not comply with recent Court of Session judgments that provision for women, by definition in the Equality Act, excludes biological males (para 36, FWS1) and those without a Gender Recognition Certificate remain of their birth sex (para 65, FWS2)

The SPS policy review was inadequate, failed to take account of any literature on the distinct needs and dedicated services for female prisoners such as the Angiolini Report, dismissed critical evidence on women’s rights and failed to publish the views of women prisoners.

A reliance on prisoner placement based on an ill-defined risk assessment ignores SPS’s own poor track record, states there is some level of acceptable risk to women, and shockingly allows males deemed too dangerous to be accommodated in the female estate a “day pass” to mix with women. It ignores that many males who identify as trans are successfully held in the male estate.

The Prison Officers Association has refused to sign off on the new policy. Procedures for searching prisoners remain unclear and it is not known whether a female prison officer can opt out of strip searching dangerous male prisoners.

A full analysis by MurrayBlackburnMackenzie is available here:
https://murrayblackburnmackenzie.org/2024/02/12/mbm-submission-to-the-criminal-justice-committee-on-the-scottish-prison-service-transgender-prisoner-policy/

and evidence submitted to the Criminal Justice Committee can be seen in Annex B here:
https://www.parliament.scot/~/media/committ/7381

As the policy is due to come into force on 26th February I urge you to take swift action to insist it is paused until such time SPS is able to produce a replacement which gives proper weight to the rights of vulnerable women in prison. Any work begun in preparation for bringing the new policy into force should be stopped.

The political parties have mostly replied with their own template letters and include the following:

Scottish Conservatives:

We were pleased to see a supportive response although numerous people have commented on the sentence: “Genuine transgender people are not the problem”, since the issue here is the person’s sex and not whether it can possibly be determined whether they are “genuine” or not. The Conservatives later confirmed they will be following up with the Cabinet Secretary for Justice.

SNP:

Oh dear. The statement quoted from Angela Constance actually reveals the Cabinet Secretary misleading Parliament. Far from “will not have access to the women’s estate”, page 15 of the EHRIA by SPS makes it clear that even if a male transgender prisoner is not eligible to be housed in the female estate “they should be offered activities and association time” with women prisoners.

We’re also bemused at how anyone can possibly say that the review has been “one of the most comprehensive and evidence-based reviews in recent times” when no-one has been able to view the evidence submitted to the review. The SPS failed to publish any evidence, the Scottish Human Rights Commission has only published their out of date submission (which they said would be withdrawn), and not even a Freedom of Information request can uncover the results of the survey on women prisoner’s views. Little wonder, given the numerous statements about women living in fear, as reported in The Times: Transgender inmates ‘terrify’ female prisoners, secret report says. Perhaps if the SNP are so confident in the high quality of review they should instruct SPS to publish the evidence.

Kate Forbes responded: “I agree this is an extremely serious matter, which is why last week I wrote to the chief executive of the Scottish Prison Service. I will keep you updated with any response I receive. I hope this is helpful.”

Michelle Thomson responded: “Thank you for your email. I have noted your comments and concerns regarding this matter. I recognise the issues you raise, and indeed prior to the Gender Recognition Reform (Scotland) Bill being raised in the Scottish Parliament, I raised similar concerns directly with Shona Robison who was the Cabinet Secretary for Social Justice, Housing and Local Government at that time. I have continued to raise the issue with the Scottish Government wherever possible.”

David Torrance’s caseworker responded: “He has asked me to say that he has read your email, noted the comments, and gives them full consideration.”

Scottish Greens:

A sensitive issue yet the Greens launch straight into an attack on their constituents concerned for women prisoners, followed by a denial of any conflict or issue. It seems they have nothing to say about women’s rights at all and clearly haven’t read the newspaper reports on the secret surveys that show women living in fear of transgender prisoners in their accommodation.

Some constituents were also treated to an additional paragraph in the Green’s response, just for an extra chance to insult the people whose vote they hope for. Hint for Patrick & Co: if numerous people tell you they find something offensive and derogatory, it’s not a myth.

Scottish Liberal Democrats:

We have a late entry from the LibDems, who replied to constituents on Sunday 25th February, the day before the policy is due to start, and way too late to lobby the Cabinet Secretary to halt it. After reiterating some blurb about the policy the MSP stated:

“I can’t see anything in the policy which would confirm your point: “the current proposal allows males deemed too dangerous to be accommodated in the female estate a ‘day pass’ to mix with women” and “I also can’t see the contradiction in the Angiolini Report”.

Sigh. It was reported in the press almost as soon as the policy was released last December, see for example, The Telegraph: Put trans criminals in female jails to help with their gender identity, says Scottish prison service, and again, just this week, in The Times: Women treated as tools to satisfy wishes of trans prisoners. And as we explained to equally uninformed SNP MSPs above, it is explicitly stated on page 15 of the EHRIA by SPS that even if a male transgender prisoner is not eligible to be housed in the female estate “they should be offered activities and association time” with women prisoners.

The Angiolini Report clearly lays out the vulnerability of women prisoners. The conclusion of the report was that women in prison in Scotland, for the most part, were more troubled than troubling. Most had histories of sexual abuse and domestic violence, with low levels of educational achievement and lives blighted by poverty. In short, it could be said that they are some of the most marginalised women in our society.

The recommendations were for ‘trauma-informed’ services and care. That is to say, a recognition that the cohort of women who end up in prison have invariably experienced trauma of a physical and sexual nature, usually at the hands of men. These women become hyperviligant and display a well-evidenced array of trauma responses to the presence of anyone who is male.

Paragraph 95 of the report states: “we recommend that the strategy must place a greater focus on women offenders, specifically the provision of services to address trauma, self harm and borderline personality disorder”.

Scottish Labour:

A few Labour replies have trickled in after the prison policy came into force, so too late for any preventative action.

Scottish Labour has often said they recognise the primacy of the Equality Act. Given that SPS say they use the exceptions in the Equality Act allowing for separate male and female accommodation it seems strange no Labour MSP (so far) has raised any concerns about how this is not being upheld – the women’s estate is not single-sex either by biological sex or by taking into account GRC holders.

Some MSPs are also passing on the following response from the Scottish Prison Service: