The Scottish Government has been accused of ignoring equality laws and putting women and girls in Scottish prisons, schools and refuges at risk by ignoring the right to single-sex spaces.
A new report claims the government is potentially breaching 11 articles of the UN Convention on the Rights of the Child with its guidance to schools on supporting transgender pupils and that it failed to carry out “any research, consultation or assessment” on the impact of funding policy changes on women’s services to make them trans-inclusive.
The report also says health boards are no longer able to assure women, including rape vicitms, that intimate healthcare will be carried out by a woman - as is set out in legislation - as they have no record of transgender staff.
Further, it reveals that the Scottish Prisons Service is now reviewing its trans policies after it failed to consider the impact on women prisoners of housing transwomen in the same prison.
The report, published today by new grassroots voluntary organisation Women and Girls Scotland, also catalogues a series of incidents in Scotland’s women’s prison, Cornton Vale, including a threat of rape, as well as physical aggression and sexual harassment.
It states: “Staff were at pains to highlight with us that the issue is not always one of whether a trans person is themselves a danger, but that for many women simply having to share intimate spaces where they are vulnerable with someone who is male... is in itself re-traumatising.
“Staff have also highlighted particular behaviours that have had a major impact. For example incidents where transwomen have been aggressive, including punching the wall in front of female prisoners during arguments, which has a very different impact on women than if it was
another female prisoner behaving aggressively.
“We have also been told of incidents of a more sexual nature that women found very uncomfortable and distressing... and of of one incident where a transwoman in the female estate threatened to rape female prisoners and female staff, which is of course hugely distressing for those women.” It adds: “We were told how the cumulative impact of this policy has been to lead to major setbacks for women in prison, including drug relapses. And this has all happened in a single sex service where, unlike most others, each prisoner moved to the female estate has first been risk assessed in detail by a multi-agency case conference. Access to most forms of female-only provision would not involve such an assessment at all.
It is our view that this, again, is an intolerable and unacceptable situation for women and it could have easily been avoided if women’s human rights and equality were considered and upheld in policy making.”
A spokesperson for Women and Girls Scotland, Leya Terra, said they had been encouraged by the SPS decision to launch a new consultation on its trans policies. She said: “SPS management appear to understand the problem, and that they have not properly considered the impact of their trans policies on female prisoners and staff. The SPS have stated they will review their trans policies, and as part of this, speak with female prisoners and staff, as well as with women’s groups.”
A spokesman for the prison service said they would be opening the consultation in the coming weeks. He said: “We are in the process of reviewing our transgender policies and it’s important that we have as wide a consultation as we can and will solicit views from anyone who has an interest. “It has been our position to deal with risk assessments on an individual by individual basis, which means that not every prisoner who presents as a transwoman is hosted in the female estate. We are very conscious that we have to ensure the health, safety and dignity of everyone in our care.”
SNP MSP Joan McAlpine, who has been raising concerns about the impact of trans rights on women’s rights, said she had spoken to a high-ranking “impeccable” SPS source, who had confirmed the report’s contents.
She said: “These are reports of vulnerable women prisoners being frightened by inmates who had not had surgery and did not possess a Gender Recognition Certificate, who spoke loudly in sexually explicit ways and on at least one occasion threatened violence and rape.
“The source said these males had troubled psychiatric histories, such as narcissistic personality disorder in their view. Another source told me the risk assessments seemed completely focussed on the trans prisoner, not the female prisoners who could be triggered by the presence of a male and who had absolutely no say in the matter.
“There is no legal reason to house them in the estate as the Equality Act 2010 allows for single sex shared accommodation that excludes trans identifying males in order to protect the privacy and safety of women.”
The authors say the report, which will be sent to all MSPs today, was written to look at the potential impact of changes to the Gender Recognition Act which would allow transgender people to “self-identify” rather than be medically diagnosed with gender dysphoria in order to receive a Gender Recognition Certificate.
Ms Terra said: “There has never been any work carried out to look at how policies based on the principle of self-identification are impacting women and girls. Until the impact is understood, it is simply not possible to say that self-identification as a principle represents best practice.”
The report also states that conflicting issues with the Equality Act and the current GRA, has left health boards unable to ensure women can ask for and receive a female clinician for intimate care.
It says: “This means that, for example, a woman who was been raped, and who has asked for an intimate healthcare procedure to be carried out by a female healthcare practitioner (HCP) and has had this agreed, could still be faced with a male HCP. Furthermore, this would happen without warning... which could lead to enormous distress and re-traumatisation, but no consent would have been formerly sought either.”
The group said both NHS Lothian and NHS Greater Glasgow and Clyde, had said their understanding was “that the combined protections of the EA and the GRA mean that to preclude transwomen with GRCs from providing female only healthcare would require illegal discrimination and a criminal sharing of information.”
Ms Terra added: “It is clear that the government has a great deal more work to carry out in order to understand the impact of their GRA proposals. We hope it is now clear that women and girls are already facing an erosion of our rights and protections, and this is impacting on our welfare and equality.”
A Scottish Government spokesperson said: “We recognise the particular disadvantage experienced by trans people across many walks of life and are supportive of measures to increase inclusion in schools for pupils and staff alike.
“Scotland is recognised as one of the most progressive countries in Europe on LGBTI rights, and it is paramount we continue efforts to tackle all forms of prejudice, including any linked to gender identity. It’s also important that we do so in a way that protects the rights of women and girls.
“We are supportive of the guidance produced by LGBT Youth Scotland on supporting young trans people. The guidance provides practical advice to schools and education authorities to support them to respond positively to meet the needs of their pupils.
“The Scottish Government would prepare a Child Rights and Wellbeing Assessment for all relevant new government policy initiatives and legislation but this is not a government publication. Any responsibility for CRWIA would rest with LGBT Youth Scotland but the obligations to prepare CRWIA do not extend to them.
“The requirement to produce a trans inclusion plan for new applicants to Equalities Budget funding streams was included from 2012 and this was expanded in 2017 to include lesbian, bisexual and intersex women in addition to trans women. This supports services to embed equality and non-discrimination in their work. A range of women’s organisations offering services already take a trans-inclusive approach. They can also turn away anyone if, following a risk assessment, they believe it would not be appropriate to support that individual in their refuge. Nothing that the Scottish Government is proposing will change that right of refusal.”