Prison staff will have no right to opt out of searching trans inmates

The head of the Scottish Prison Service (SPS) has refused to say whether officers will be entitled to opt out of searching transgender prisoners under new guidelines that will come into effect next month.

Last month the prison service published a revamped policy on how trans prisoners are to be managed within the prison estate, stating that the response will be “individualised …. as far as is operationally practicable” and that there would be no automatic presumption against housing self-identifying trans women in female-only prisons.

During a session of the Scottish Parliament’s Criminal Justice Committee, Scottish Conservative member Russell Findlay, who has been highly critical of the new policy, asked SPS chief executive Teresa Medhurst whether female staff could decline to carry out intimate searches on transgender prisoners and if they would be disciplined for doing so.

Medhurst told Findlay that staff are not disciplined for any issues they wish to raise and that the service will “listen to them and we will work with them” but did not directly respond to the question on an opt-out.

After being asked the question by Findlay three times, Medhurst confirmed that the presumption is that prisoners will be searched in their acquired rather than birth gender but did not address whether a staff opt-out would be an option.

“What I’m trying to say is that we have a responsibility and a duty of care,” she said. “Where there are individual concerns we have always worked with individual members of staff to listen to those concerns and work around that with them.”

The line of questioning was also taken up by John Swinney of the SNP and Labour’s Pauline McNeill, with Medhurst telling the former that a staff member with concerns could raise them with their line manager “and an agreement reached on how to move forward”.

She told McNeill that she has “not come across a circumstance where it has been necessary either to compel somebody or discipline somebody” in relation to searches.

When the new policy was published concerns were raised that the individualised approach it describes could result in transgender women with a history of violence against women and girls being housed in the female estate.

The policy states that trans prisoners will be placed in an establishment that aligns with their biological sex if placing them according to their acquired gender “gives rise to unacceptable risks that cannot be mitigated or this risk is as yet unknown”.

However, it also says that it would be possible for trans women with a history of violence against women and girls, including but not limited to sexual violence, to be housed in female prisons in “exceptional circumstances”.

Committee convener Audrey Nicol asked Medhurst to elaborate on the kind of risk assessment that would need to take place in order for that to happen.

Medhurst said that “rigour would be applied” and that a risk management team made up of SPS staff as well as a range of experts including health professional and forensic psychologists would assess applications on a case-by-case basis.

Findlay asked whether that meant a prisoner such as Isla Bryson, who last year was convicted of rapes committed while living as a man and was initially placed in women's prison Cornton Vale before being moved to HMP Barlinnie, could potentially be eligible for a transfer to the female estate.

Medhurst said that anyone who is “deemed a risk to women” would not be transferred, but admitted that it would “depend on the circumstances of the individual case, what the violence related to and what risks were identified”.

“I would be struggling to understand in what circumstances someone who has been convicted of a sex offence would be deemed not a risk to women,” she said.

Pressed on the issue by Swinney, Medhurst said the risk assessment would look at everything from a prisoner’s early experiences and relationships through to their behaviour at school and in work and would also look at the “context of how someone has lived”, how they have “commenced down the road of offending behaviour” and how their “transgender journey started and how that has developed”.

“It takes account of every element of that individual’s life and goes into it in as much depth and rigour as possible,” she said.

Responding to McNeill, who said she wanted to “tease out” what kind of exceptional circumstances would have to exist for a transgender prisoner convicted of sexual offences to be housed in the female estate, Medhurst said it would be where the offender themselves was considered vulnerable in the male estate.

“I’m struggling to envisage in what circumstances that would happen, particularly in relation to circumstances where someone has been convicted of rape,” she said.

Medhurst confirmed that the new policy, which was drawn up as a direct result of the Bryson case, will come into effect at the end of February.

Speaking after the committee Findlay, who said it had been a "pretty frustrating session" that "falls short of meaningful scrutiny", said the policy would put the rights of male-bodied prisoners over those of female inmates.

“This policy puts the rights of male-bodied trans prisoners above the welfare of vulnerable and voiceless women who have often suffered violence and trauma at the hands of men," he said.

"It is little more than a re-heat of the previous policy which resulted in rapist Isla Bryson being sent to a woman’s prison.”