In April 2012 the Scottish Government published Commission on Women Offenders, by Dame Elish Angiolini, setting out a series of practical recommendations to help improve the outcomes for women in the criminal justice system.
Underscoring the vulnerability of women in prison, the report observed much higher rates of serious mental health problems, compared to the general population, and that women offenders were, ‘often victims of severe and repeated physical and sexual abuse’.
In 2014 the Scottish Prison Service (SPS) introduced its Gender Identity and Gender Reassignment Policy, aimed at supporting a different group of vulnerable prisoners, also with specific needs. That such a policy was required is not in doubt. What is in question, is the SPS decision-making process, which, despite the emphasis on vulnerability in the Angiolini report, failed entirely to consider the impact on female prisoners or staff, focusing only on the needs of transgender prisoners.
Developed in partnership with the Scottish Trans Alliance (STA) and Stonewall, the policy circumvented the single-sex exemptions in the Equality Act 2010 and established a de facto mixed-sex estate, by enabling male prisoners who identified as women to be accommodated in the female estate on a case-by-case basis, subject to risk assessment, and vice-versa.
The policy also provided that prisoner searches be undertaken on the same basis, and stated that staff concerns about searching a person of the opposite sex should be addressed, 'via training and information about gender reassignment and equality requirements’.
People in custody should be rubbed down 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.
For the STA, the policy represented a bridgehead for its advocacy. In 2018, the then manager James Morton, whose name is detailed on the SPS policy metadata, 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.
Against a backdrop of increasing public concern about the impact of gender self-identification on women’s rights, in December 2018 an online media outlet reported that the SPS intended to review its transgender prisoner policy, commencing in early 2019. In a candid acknowledgement that the SPS had failed to consider women in its decision-making, a spokesperson stated:
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.
Five months later, in May 2019, a report by the grassroots organisation, 'Women and Girls' brought the operation of the policy to public attention, documenting concerns raised by SPS staff (and subsequently confirmed by a former SPS Governor in the Scottish Parliament). The report noted that:
...for many women simply having to share intimate spaces where they are vulnerable with someone who is male… is in itself re-traumatising’
It continued to highlight particular behaviours and incidents, including those of an aggressive or sexual nature, and how showering arrangements made some women feel uncomfortable and distressed. Responding in the media, a SPS spokesperson stated the consultation would be opening in the coming weeks, and that, ‘we can and will solicit views from anyone who has an interest’.
In June 2019, Labour MSP Elaine Smith raised the findings in the Scottish Parliament, alongside concerns about a lack of policy scrutiny or wider consultation. In response, the Cabinet Secretary for Justice stated that the review was indeed underway, and that MSPs would be consulted.
In August 2019, in a now familiar pattern, the SPS responded to a STV media report, stating that it was committed to reviewing the policy and holding an open consultation. At the same time, the SPS Head of Corporate Affairs said, 'We've operated this policy successfully for a number of years'.
In February 2020, in response to a parliamentary question on the status of the review, the Justice Secretary stated that the SPS had completed its internal consultation, and that external consultation was expected to begin in October 2020:
Internal consultation in respect of those in custody has already been undertaken with those in our care and staff. It had been intended to start a targeted external consultation…but this was unfortunately delayed due to COVID lockdown.
SPS is currently in the process of summarising the information obtained during the internal consultation to provide briefing for those who participate in the planned external consultation process. It is anticipated that the external consultation will be initiated towards the end of September with a view to conducting interviews during October, November and December 2020. The interview process should allow time for appropriate sharing and clarification before any policy refinement is undertaken in the New Year.
A recent paper by a former SPS employee published in the current edition of the Prison Service Journal sought to capture the views of transgender prisoners, asking where those in custody would like to be housed.
Drawing on interviews with 13 transgender prisoners, eleven of whom are described as transitioning from male to female, with one having undertaken surgery, the paper highlights, '...the desire of transgender people in custody to be treated in the same manner of people of the same gender as them’ noting that this, ‘resulted in a number of participants wanting to be searched more, to share a cell and shower at the same time as other people in custody'.
Whether female prisoners felt comfortable sharing cells or showering at the same time as biological males, most of whom retained their male genitalia, is not discussed. Staff discomfort at conducting body searches on people of the opposite sex, resulting in less frequent searches, is however noted. The journal editorial states that the paper focuses, 'on the experience of people directly affected and shows the diversity of perspectives' but fails to note that women are not considered.
At the time of writing, the review process remains elusive. Indeed, at no stage have the SPS or Scottish Government formally announced that a review would take place, responding only to media queries, parliamentary questions or Freedom of Information requests. Nor are the terms of reference available. There are no routine statistics published on the number or placement of transgender prisoners, nor on how many prisoners transition before or after reception into prison. Meanwhile, few criminal justice practitioners or academics appear willing to speak out on what remains a heated issue.
Nevertheless, it remains the case that there is sufficient evidence, both published and unpublished, to show that some female prisoners are uncomfortable at the placement of biological males in the female estate, and that some female staff are uncomfortable managing transgender prisoners, in particular undertaking searches.
Acknowledging this conflict, between the interests of female prisoners and staff, and those of transgender prisoners will be critical to making this policy work.
MurrayBlackburnMackenzie is a policy analysis collective, established in late 2018. Over the past two years, they have researched and written about women’s sex-based rights and gender self-identification across different areas of public policy in the UK.