Blanket ban on trans prisoners in female prisons not possible, MPs told

A blanket ban to prevent trans prisoners being housed in the female prison estate would not be possible under the current law, MPs have been told.

Public law expert Michael Foran said exclusions set out under the Equality Act, which allow services to stop trans women from accessing female-only spaces, are subject to proportionality and therefore a blanket ban would not be upheld by the courts.

Speaking to the Commons’ Women and Equalities Committee, Foran said: “The point of safeguarding law is that you have to deal with the exceptional case, because if the exceptional case was to happen and it would just be so awful – it would be so incredibly awful – that we need to have a system in place that prevents that from ever happening.

“If we think that, for example, the rape of a female inmate in a prison is one of those categories, then you need a blanket ban. There’s no other way to do it, and you can’t do that under the current legal framework.”

The Committee was taking evidence on the Gender Recognition Reform Bill and its interaction with the Equality Act, following the UK Government’s decision to prevent the bill from becoming law.

Alister Jack, the Scottish Secretary, said the bill would have an adverse impact on the operation of the reserved Equality Act.

The session also comes after the case of Isla Bryson, a rapist who identified as female and was originally remanded at Cornton Vale women’s prison before being moved to the male estate.

Foran told MPs that making it easier to obtain a GRC would change the nature of possible discrimination claims and if such a case was taken to the courts, the judge would have to consider whether their exclusion was a “proportionate means of achieving a legitimate aim”.

He said: “If you think that a court would possibly come to a conclusion that the exclusion of this legal woman who is biologically male, that there is a less onerous way to achieve the legitimate aim of providing security, then the policy will be struck down as unlawful.

“If you want to ensure with absolute certainty that no rapist makes it into a woman’s jail, you need a blanket ban – and blanket bans can be struck down by courts. You need to legislate to have that ban in place.”

But Lord Falconer, a barrister and Labour peer, said this opinion was “misguided” and he insisted the operation of single-sex spaces would “not be affected” by Scotland’s Gender Recognition Reform Bill.

On the question of access to female prisons specifically, he said: “It doesn’t matter whether you’ve got a gender recognition certificate or not. You’ve got to work out whether it’s safe for somebody, and that is exactly the way the courts will approach it. This idea that the GRC will make that different is complete academic nonsense.”

The policy of the Scottish Prison Service is to risk assess each trans prisoner being admitted to custody about where they should be placed. This is currently under review.

But the Scottish Government announced on Monday that it had banned any prisoner with a history of violence against women being placed in a women’s prison whilst an “urgent review” is underway.