Female prison officers no longer need to strip search trans-women

Previously, female prison officers had to search trans women prisoners “with the intention of respecting the individual’s lived gender.”

Earlier this year the SPS required female staff members to carry out intimate searches on Tiffany Scott, formerly known as Andrew Burns, a violent and aggressive prisoner, subject to an order for lifelong restriction, with a history of attacking officers.

Scott still has male genitalia.

The new rule gives discretion to the prison Governor to “allow a transgender person to be searched by an Officer of their birth sex if it is necessary and proportionate to do so.”

The Murray Blackburn Mackenzie policy group welcomed the new measure but contrasted it with the “gaping loophole” in the new trans prisoner policy that could ultimately lead to men convicted of violence against women and girls being housed in the female estate.

READ MORE: Scottish Prison Service trans prisoner policy criticised

The Equality Human Rights Impact Assessment published alongside the guidance detailed some of the general concerns women and unions raised when the new policy was being formulated. 

It stated: “A small number of stakeholders felt that staff should never be placed in the position where they are asked to search someone who is anatomically different to them.

“Examples were given in relation to the level of discomfort that could be felt from staff whose religious faith would be challenged, and staff who have experienced sexual abuse themselves, particularly women.

“These stakeholders expressed a concern at the level of trauma that staff could be exposed to as a result of being asked to search individuals in line with their gender identity as opposed to their birth gender.”

The staff urged the service to be “sensitive to previous experiences of prison staff and should acknowledge that searching anatomically different bodied people could lead to discomfort or the triggering of trauma.”

However, in the discussion over what to do, the SPS warned against having a complete opt-out for officers as it “would potentially open the door to too many officers taking this option and there being no officers available to conduct a search.”

“Evidence from other jurisdictions showed that opt-in or systems which allowed officers to volunteer to conduct searches of transgender individuals in line with their affirmed gender were ineffective and would not able to be operationalised.”

READ MORE: Gender recognition reform: How MBM fought Scottish Government's plan

In a new blog post, to be published today, Murray Blackburn Mackenzie welcomed the change but said female prisoners were being left behind.

The Policy for the Management of Transgender People in Custody initially states that a transgender woman “will not be eligible to be considered for admission or transfer to a women’s prison” if they have been convicted for a raft of crimes, including murder, assault, robbery, abduction, rape, and sexual harassment.

However, it then goes on to say that there is an exception to this rule if the SPS’s Risk Management Team, and subsequently an executive panel, “are satisfied there is compelling evidence that they do not present an unacceptable risk of harm to those in the women's prison.“

Murray Blackburn Mackenzie said: “Unpicking this obfuscating double-negative, this means, extraordinarily, that the SPS believes that there is ‘acceptable risk of harm’.”

They also questioned the SPS’s belief that it is competent enough "to filter out those who may seek to abuse the policy to access the women’s estate to harm women.”

“We think this confidence is misplaced,” they said.

"That the SPS has previously housed men convicted of murder, torture, voyeurism, and sexual assault in the female estate does not reflect well on its risk assessment competencies."

Murray Blackburn Mackenzie said: “The protections for prison officers are welcome, if limited.

“At the same time, they underscore that the SPS has left female prisoners behind.

“These women do not enjoy the support of a union nor well-funded lobby groups with strongly embedded links to the prison service.

“Despite hitching itself to a trauma-informed approach for the care of women in its custody, the SPS continues to prioritise the needs of a small group of men.

“Instead of asking why it should house any men in the women’s estate, given most male prisoners with trans identities are not already held in the female estate, it has focused its energies on developing a policy designed to give some men a pass.”

SPS did not respond to requests for a comment.