Scotland’s Justice Secretary expressed faith in the Scottish Prison Service’s (SPS) decision to place a transgender woman convicted of raping two women while she was a man in a women’s prison.
Keith Brown also told MSPs that the controversial Gender Recognition Reform (Scotland) Bill – which is currently being challenged by the UK Government – would have no implication on which prisons transgender people are held in.
Mr Brown was responding to an urgent question in Holyrood on Wednesday after Isla Bryson was found guilty of raping one woman in Clydebank in 2016 and another in Drumchapel, Glasgow, in 2019, following a trial at the High Court in Glasgow.
It is understood Bryson is being held at Cornton Vale women’s prison in Stirling while she awaits sentencing.
Downing Street has also expressed concern about the placement, as the Prime Minister’s official spokesman said on Wednesday: “This is a case in which the courts are yet to hand down a sentence so I’m not going to give anything on the specifics.
“I’ve seen the reporting and understand the concerns.”
Asked about the general policy, he said: “The UK has a policy which sees the prison service in England and Wales manage transgender prisoners on a case-by-case basis and transgender women must go through a robust risk assessment which factor in their offending history and anatomy before they can be moved to a women’s prison.”
The SPS and the Cabinet Secretary said transgender prisoners are processed on the basis of “risk”.
Scotland’s First Minister Nicola Sturgeon, speaking in general terms to the BBC, said a trans woman would not automatically be sent to a women’s prison.
“There is no automatic right for a trans woman convicted of an offence to go to a women’s prison,” she told Radio 4’s PM programme.
“This idea that because somebody, who of course may have committed crimes as a man, but then tries to change gender simply to avoid going to a man’s prison, there is no such automaticity around that.
“This is about individual risk assessments.
“Whatever your view of this, the gender recognition Bill passed by the Scottish Parliament doesn’t in any way change the system.”
Mr Brown’s remarks on Wednesday were responding to questioning from Scottish Tory justice spokesman Russell Findlay, who said: “This scenario is exactly what I tried to stop during the passing of Nicola Sturgeon’s Gender Recognition Reform Bill – but I was voted down by the narrowest of margins.
“And even with the flawed Bill in limbo, violent criminals are exploiting the system and putting vulnerable women at risk. Can the Cabinet Secretary tell me why his SNP Government think any rapist should be allowed inside a women’s prison?”
He also urged the Cabinet Secretary to “block” trans people convicted of rape being placed in women’s prisons.
The UK Government blocked the gender reform legislation in Scotland – which would speed up and simplify the process for trans people to obtain a gender recognition certificate (GRC) – amid concerns it would interfere with UK-wide equality laws.
In response, Mr Brown said: “Possession of a GRC will continue to have a minimal impact on how the SPS manage transgender people.
“Their process is one on the assessment of risk. I think that’s an important thing to do. It’s assessment of risk for the individual, assessment of risk for other prisoners and the assessment of risk of other prison staff as well.
“They have a tremendous track record in dealing with managing that risk.”
He added: “I trust the SPS to do that.”
Labour MSP Pauline McNeill told Mr Brown the risk assessment had “obviously failed” in some way due to the impact it will have on other prisoners and members of the public.
Bryson first appeared in court as Adam Graham in 2019 and was later named in court papers the following year – around the time she decided to transition – as Isla Annie Bryson, formerly known as Adam Graham.
The court heard in agreed evidence that Bryson now identifies as a transgender woman and was previously known by the “dead name” Adam Graham.
Giving evidence last week, she said she knew she was transgender at the age of four but did not make the decision to transition until she was 29, and is currently taking hormones and seeking surgery to complete gender reassignment.
An SPS spokeswoman said: “Decisions by the SPS as to the most appropriate location to accommodate transgender people are made on an individualised basis, informed by a multi-disciplinary assessment of both risk and need.
“Such decisions seek to protect both the wellbeing and rights of the individual as well as the welfare and rights of others around them, including staff, in order to achieve an outcome that balances risks and promotes the safety of all.
“Where there are any concerns about any risks posed by an individual, either to themselves or others, we retain the ability to keep them separate from the mainstream population until an agreed management plan is in place.”
