Prison service sets out 'individualised' approach to dealing with trans offenders

The Scottish Prison Service (SPS) has drawn up new guidelines for how transgender people will be managed within the prison estate nine months after being forced to carry out an urgent review into the Isla Bryson case.

Bryson, who at the beginning of this year was convicted of rapes committed while living as a man, was initially placed in women's prison Cornton Vale, but was moved to HMP Barlinnie following a political row that saw then First Minister Nicola Sturgeon repeatedly avoid saying whether she believed Bryson to be a man or a woman.

The SPS undertook an urgent lessons-learned review in the wake of the case, finding that new systems should be set up to help make decisions about where transgender prisoners serve their sentences.

No transgender prisoners with a history of violence against women, including sexual offences, have been relocated from the male to female estate in the interim while it has been a requirement that newly convicted transgender prisoners be placed in an establishment "which aligns with their gender at birth".

The SPS’s new Policy for the Management of Transgender People, published today, stipulates that the way transgender prisoners are managed must be “individualised …. as far as is operationally practicable” while “protecting the rights of transgender people in custody” and “promoting the care, safety, and wellbeing of everyone across Scotland’s prison estate”.

That means that when admitted to custody transgender people “should be considered on an individual basis as far as possible”, with no automatic presumption against housing self-identifying trans women in female-only prisons.

The policy further 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”.

No trans woman will be eligible to be admitted or transferred to a female prison if they have ever been convicted of offences that “perpetrate violence against a female that results in physical, sexual, or psychological harm or suffering to a female”, although that can be overruled if there is "compelling evidence that they do not pose a risk of harm" to others.

As well as rape and sexual harassment the list of relevant offences includes robbery, assault and breach of the peace.

SPS chief executive Teresa Medhurst said the policy would ensure transgender prisoners are “treated with dignity and respect, with their rights upheld” while also “carefully managing any risks”.

“Our staff have an excellent track record in working with our transgender population, and I know that will continue under this new policy,” she said.

Justice Secretary Angela Constance said the policy would protect the safety and welfare of SPS staff, “those in their care and the rights of transgender people” while also making clear that any transgender woman who “meets the service’s violence against women and girls criteria” would not be considered for a female prison.

“SPS has considerable expertise, as well as a duty of care for the management of people in their custody, and this policy upholds its responsibilities to deliver safe, secure and suitable services for all,” she said.

Scottish Conservatives justice spokesman Russell Findlay, who last year tabled an unsuccessful amendment to the Scottish Government’s Gender Recognition Reform Bill (GRR), lambasted the policy, saying it would put female prisoners at risk.

“The SNP shamefully used vulnerable and voiceless female prisoners to impose its dangerous gender self-ID policy by stealth, which resulted in the obscene case of Isla Bryson being sent to a woman’s jail,” he said.

“These long overdue new guidelines actually put women at even greater risk by further eroding their fundamental right to single-sex space.

“They say that male prisoners with a history of violence against women or girls should be allowed in the female estate and will only be blocked if they present a risk, which is completely subjective. This is clearly unacceptable – and SNP ministers need to go back to the drawing board.”

Findlay had attempted to amend the GRR bill to ensure gender self-ID was not available to anyone awaiting trial for sexual offences.

Though that bid failed, the bill – which passed in December last year – has not yet been enacted because it has been opposed by the UK Government using Section 35 of the Scotland Act.

The Scottish Government has challenged that decision in court, with a three-day hearing held in September. The judge overseeing the matter, Lady Haldane, has warned that due to the case’s “unique, interesting and challenging” nature it is likely she will take some time to deliver her judgment.