Transgender inmates with a history of violence against women will not be housed in female prisons in Scotland, except in “exceptional circumstances”.
The long-awaited Scottish Prison Service policy review was prompted by the public outcry after a newly convicted transgender woman, Isla Bryson – who committed two rapes while living as a man, Adam Graham – was initially sent to the women-only prison Cornton Vale in January for assessment.
Although Bryson was moved to a male prison less than 72 hours later, the furore escalated after similar cases emerged, causing the former first minister Nicola Sturgeon considerable difficulties in the final days before her resignation in February.
The new guidelines confirm an “individualised approach” that any transgender woman with a history of violence against women and girls, and who is assessed as presenting a risk to women and girls, will not be placed in the women’s estate.
Those who have changed their legal gender can still be accommodated in accordance with their sex at birth, “if it is considered necessary to support people’s safety and wellbeing”.
Teresa Medhurst, the chief executive of the Scottish Prison Service, was asked on BBC Radio Scotland on Tuesday: “In the case of Isla Bryson, can you say that a trans woman who is in the middle of transitioning and has committed a violent crime against women will not go into the female estate?”
She replied: “I can say that anyone who has a history of violence against women and is currently assessed as a risk to women will not go into the female estate.”
If their offences were a long time ago and low-level, a trans woman could be moved to the female estate, but Medhurst stressed that would be exceptional.
The Scottish Conservative justice spokesperson, Russell Findlay MSP, said this “unacceptable” loophole was based on a “completely subjective” risk assessment.
Other critics suggested that the narrow focus on the potential risk of assault ignored the broader impact on fellow inmates. Lucy Hunter Blackburn, from the policy analysts Murray Blackburn Mackenzie, said the prison service “needs to recognise how the presence of someone male might impact upon group of vulnerable traumatised women, held in spaces from which they cannot escape”.
Vic Valentine, the manager of Scottish Trans, welcomed that updated policy as “recognising that trans people in custody should not be considered to be a risk of harm to others simply because they are trans”, and supported decision-making “on the basis of evidenced risk assessment”.
According to the most recent figures available, from January to March 2023, there were 23 transgender prisoners in Scottish prisons in total, including 12 trans women in the men’s estate and seven trans women in the women’s estate, as well as one trans man in the men’s estate and three trans men in the women’s estate.
The new policy updates 2014 guidance that prisoners should be placed in facilities according to their gender identity but dependent on detailed and continuing risk assessment.
The Scottish policy is more individualised than that in England and Wales, where in February the then home secretary Dominic Raab set out “sensible” new measures that transgender offenders who have committed sexual or violent crimes or retain male genitalia cannot serve their sentence in a women’s prison “unless explicitly approved at the highest level”.
Scottish Prison Service consultation with women inmates for the new policy found that, while they displayed a “live and let live” attitude towards transgender people in custody, they also raised concerns about predatory individuals “manipulating the system”.
