This week the Scottish Parliament Justice Committee will consider the Scottish Prison Service revised policy for transgender prisoners, finally published after a five-year hiatus. The revised policy has an erratic and opaque history. The SPS first stated it intended to review its policy in late 2018, in comments made to the press, although no visible progress was made on this. In 2020 the then Cabinet Secretary for Justice stated the review was already underway, but this was not taken to completion. The review underpinning the revised policy ran from 2021 and 2023; although in early 2023 the SPS hastily put more restrictive interim guidelines in place, in response to the placement of double-rapist Adam Graham/Isla Bryson in the female estate and subsequent public backlash to this.

As before, the revised policy is based on self-declaration principles. Prisoners seeking to be accommodated and/or searched based on their gender identity are required to “demonstrate” their identity, but this is not essential. As the SPS explain, the “policy is also explicit that decisions should not be made based on an individual’s ability to provide a wealth of evidence and there may be many reasons why an individual cannot provide this evidence and should not be penalised for this”.

Whilst the revised policy starts from a default position of excluding men with a history of violence against women from the female estate, it also provides for access if the risk is not considered ‘unacceptable’ – or in plainer language, SPS thinks there is an “acceptable” level of risk it can create here. Whereas the interim guidelines required Ministerial sign-off in such circumstances, the revised policy relaxes this and requires only internal authorisation, thereby removing political accountability. For men not housed in the female estate, access may still be provided via work parties, activities, and programmes. 

In March 2022 the SPS told us “The review process and the evidence gathering will be thorough and comprehensive and provide us with relevant information in order to come to a preferred policy position”. This is far from apparent. The SPS has provided scant details about its consultation process, methodology, or the results.   

Despite consulting more widely, compared to the preceding 2014 policy, the SPS has nonetheless arrived in the same place. To reach this position, it has ignored a swathe of evidence relating to the vulnerability and trauma of women prisoners, male offending risks, and relevant human rights instruments. Despite the clear relevance of the policy to female prisoners, the Equality and Human Rights Impact Assessment (EHRIA) only sought to understand the policy impact on transgender prisoners in any depth. It ignored the 2007 Corston Review of Vulnerable Women in Prison and 2012 Commission on Women Offenders chaired by Dame Elish Angiolini, as well as its own policies that foreground the prevalence of trauma in the female prison population. It did not consider human rights instruments relevant to women but instead cites the controversial Yogyakarta principles at length. It relegates women to the status of “non-transgender women” and describes risks to their safety as “perceived” and a “perspective”. 

To justify its position, the SPS maintains it cannot uphold a blanket ban based on sex but provides no convincing explanation. It asserts a blanket ban is incompatible with its requirement to ‘recognise gender identity’; but forgets that trans-identified men are routinely housed in Scotland’s male estate. From January to March 2023, the SPS accommodated 12 trans-identified men in the male estate, compared to seven in the women’s estate. The SPS also houses other vulnerable men in the male estate. It is unclear why it believes responsibility for “affirming” the self-declared identities of a small subset of these should fall on women prisoners.        

The SPS asserts it is confident in its ability to risk assess trans-identified prisoners, that its previous policy worked well, and, startlingly, that it “does not have evidence from its own population in custody that transgender women pose a risk to non-transgender women, or indeed to other transgender women in custody”. The reality here is that the SPS has a track record of placing violent men in the female estate, including those convicted of murder, torture, voyeurism, and sexual assault. It has also chosen to house men who have bitten and intimidated female prison officers in the women’s estate.  

That the SPS appear blind to its own history is perhaps explained by a belief that these men are in fact a subset of the female sex-class. The same conviction may also help to explain its hardline approach to “misgendering”, which stretches the Forstater judgment to a potential breach of Article 3 ECHR, compelling staff to refer to men convicted of rape, child abduction, and sexual assault as “women”.  

It is SPS’s view, in line with this judgement that deliberately referring to a transgender person not by their name or their pronouns could amount to harassment and even constitute degrading or ill-treatment under Article 3 of the ECHR.

Both the former and current First Ministers refused to refer to Bryson/Graham, as a woman. The current First Minister also stated Bryson was “not a genuine trans woman” and “trying to play the system”. The same freedoms will not, it seems, be extended to SPS staff.

In its obsession with weeding out potential attackers as the only necessary risk management, the policy also conveys a general revulsion against seeing any man housed with women in prison as a risk, whether physically or psychologically. Perhaps not everyone involved in producing this believes people can actually change sex, or that sex is a feeling. But in that case, Not All Men plus “Not My Nigel” is doing everything else necessary to make vulnerable women even more vulnerable. 

The breathtaking claim that a policy — which allows for violent men to be housed with women — has no identifiable potential for unlawful discrimination, adverse impacts, or breaches of human rights articles and “advances equality and human rights as well as fosters good relations” shows an organisation that appears unable to comprehend the conflict of rights the underpins its own policy.  

We think there is a case to argue that the SPS has not met the Gunning principles governing lawful consultation, especially the duty to “conscientiously” take evidence into account. In this case, it appears the SPS simply ignored clearly relevant evidence drawn to its attention. 

The lack of balance demonstrated here is not an isolated case. The same failures are evident in the analyses underpinning the two Scottish Government consultations on gender recognition reform. In each case, it appears the policy was decided at the outset, and the evidence retrofitted to that aim. Like the SPS, the Scottish Government ignored relevant evidence, including cases demonstrating the adverse impacts of policies and laws based on self-identification. 

Like the SPS, the Scottish Government failed to understand that concerns about self-identification relate to sex, not gender identity. Based on the profoundly unscientific belief that men with trans-identities are in fact women, both organisations failed to comprehend that the population-level risks presented by trans-identified men are just the same as other men; and that these risks are the basis for sex-based safeguards. 

The SPS has taken five years to develop and finalise a policy which disapplies these safeguards for a small group of men. Instead of asking why any men should be allowed to access the female estate, the SPS has instead focused its energies on developing a policy that ensured at least some would be allowed access. 

The SPS could have followed the recent Ministry of Justice (MoJ) policy, which provides much stronger protections for the women in its care whilst steering short of a blanket ban. That it chose not to appears to be indicative of its unwavering commitment to a set of principles that provided for a double-rapist in the women’s estate, based on the understanding that, on his own self-declaration, he was now a subset of the female sex-class. 

The revised policy is due to be introduced next month. We think MSPs should insist that the current interim policy, devised after the Graham/Bryson case, stays in place until such time as SPS is able to produce a replacement that gives proper weight to the rights of vulnerable women in prison. Any work begun in preparation for bringing the new policy into force next month should be stopped.