Prisons may be devolved, but Scotland should look to England & Wales

At the beginning of April we wrote to Teresa Medhurst CEO at Scottish Prison Service seeking her assurance that prisoners who correctly referred to an individual's sex registered at birth would not be reported to Police Scotland under the Hate Crime Act.

We are still waiting for a response. Today, the Ministry of Justice has published the Prisoner Discipline Procedures (Adjudications) Policy Framework. It contains a section on threatening & abusive behaviour directed against those who have the protected characteristic gender reassignment. As is the case with much that MoJ produces these days, we consider it to be pretty good.

With that in mind, we have written to Teresa Medhurst again:

Teresa Medhurst,

CEO

Scottish Prison Service

One Lochside

1 Lochside Avenue

Edinburgh

EH12 9DJ

By Email Only 13th May 2024

Dear Ms Medhurst,

Re: Hate Crime and Public Order (Scotland) Act

I wrote to you on 3rd April seeking your assurances that women in prison who wish to use pronouns and words such as “woman” and “man” to refer to a person's sex (as observed at birth, regardless of any later state certification in respect of acquired gender) will not, subsequent to the implementation of the Hate Crime and Public Order (Scotland) Act, be referred to Police Scotland for investigation.

As I am sure you are aware, Police Scotland have determined that author J K Rowling will not face prosecution in respect of a series of tweets in which she called a selection of named transwomen men and used male pronouns to refer to them.  These included three current or former offenders, namely Isla Bryson, Katie Dolatowski and Andrew Miller (AKA Amy George).  It is clear that simply referring accurately to an individual’s sex registered at birth is not a matter for the police.  Women in prison should be as free here in relation to any other person, including any other prisoner, as those outside prison are.

I have yet to receive a response to that letter.

I also sought your assurances that prisoners who correctly refer to the sex registered at birth of any individual will not be subject to disciplinary procedures or sanction.  Today, the Ministry of Justice has published the Prisoner Discipline Procedures (Adjudications) Policy Framework.  This is due to be implemented across England and Wales on 31 May 2024.

At section 7.112 the policy framework addresses threatening or abusive words or behaviour, which demonstrate, or are motivated (wholly or partly) by, hostility to persons based on them sharing the protected characteristic gender reassignment, as defined under the Equality Act 2004.  I note the following:

• Language or behaviour must be threatening or abusive in order to meet the threshold - it is not sufficient for language or behaviour to be merely “insulting”
  

• Prisoners’ speech cannot be compelled and they cannot be punished for refusing to use preferred pronouns to refer to either other prisoners, or staff

• “Gender critical” speech or behaviour does not meet the threshold and these beliefs fall within a protected characteristic

• Charges must be proven “beyond reasonable doubt”

I am encouraged by this approach that seeks to protect all prisoners from genuine instances of threatening or abusive behaviour or language.  Again, the Ministry of Justice demonstrate their understanding of the wider context and the potential for accusations of transphobia to be used against vulnerable prisoners.  Notwithstanding that prisons are devolved, surely you must agree that it is unsatisfactory that those held in Scottish establishments are at risk of both punishment and being criminalised, where those held in England and Wales are not?

I continue to look forward to your response.

Yours sincerely

Kate Coleman

Director, Keep Prisons Single Sex

cc: Justice Secretary, Angela Constance
Convenor Criminal Justice Committee, Audrey Nicoll
Deputy Convenor, Russell Findlay
Member, Sharon Dowey
Member, Katy Clark
Member, Pauline McNeill
Member, Fulton MacGregor
Member, Rona Mackay
Member, John Swinney