Violent Trans-Identified Men Could Be Sent to Women’s Prisons in Scotland

Isla Bryson, 31, formerly known as Adam Graham, from Clydebank, West Dunbartonshire, arrives at the High Court in Glasgow, on Jan. 23, 2023. (PA Media)

A new policy proposed by the Scottish government could allow trans-identified men convicted of violent offences against other men to be housed in the female estate.

Theresa Medhust, chief executive of the Scottish Prisons Service (SPS), said that while it was “highly unlikely” men convicted of violence who then claim to be women would be locked up with vulnerable women, it could still happen in “exceptional circumstances” if it was decided the trans-identified males did not pose a risk to women.

At a meeting of the Criminal Justice Committee, MSPs scrutinised proposals drawn up by the SPS following a number of high-profile cases of trans-identified men in female prisons, including convicted rapist Isla Bryson.

The new policy means that any trans-identified men with convictions for violence against women cannot be transferred to the female estate if they claim they now identify as transgender—but it does not go far enough for women’s rights groups and many politicians, who believe it is fundamentally unsafe to have any males in female prisons.

Ash Regan, an MSP who defected from the SNP to the Alba Party said: “It took five years to develop this revised policy because the previous one did not take account of women’s safety. The Scottish government have now taken five years to make the same mistake again.”

Ms.Regan took issue with the government’s claim that women’s prisons are often “kind” and “tolerant” toward trans-identified males, and said she did not think that female empathy was “relevant” to safeguarding issues.

“Why does this policy prioritise the feelings of trans-identified males over the safety of women prisoners?” she asked of Ms. Medhurst and the Cabinet Secretary for Justice and Home Affairs, Angela Constance, who said she did not accept this interpretation.

Self-ID to Continue

Scottish prisons will continue to operate a self-identification policy in which male inmates will be treated by staff as women even if they transition after they have been convicted, and all prisoners who say they identify as the opposite sex will be “taken seriously,” Ms. Medhurst confirmed.

Russell Findlay, a Conservative MP, said he was unhappy with the proposals partly because they did not make clear if female prison officers had an opt-out clause for searching trans-identified male inmates.

Mr. Findlay said the new policy “ultimately puts the rights of male prisoners who identify as women above the rights of voiceless and vulnerable inmates, it allows for an acceptable risk of harm to women and it is a retrial of the previous flawed policy.”

He objected to the SPS document for stating that prison staff could be in breach of an inmate’s human rights if they “misgender” a trans-identified prisoner by failing to use their preferred pronouns or name.

Sharon Dowey, also a Conservative, asked why the Scottish government has chosen not to follow the same path as the Ministry of Justice south of the border.

“In England, no man with intact genitalia can be locked up with women,” she said, expressing concerns for the vulnerability of women prisoners who may have been victims of male violence.

‘Exceptional Circumstances’

Ms. Medhurst said that 23 trans-identified inmates are now housed in the Scottish estate, but new rules from the SNP mean it cannot be disclosed which prisons they are in.

She would not give specific examples of which “exceptional circumstances” might allow males with a history of violence against other men to be locked up alongside women, and said all assessments would be rigorous and done on a case-by-case basis.

A Freedom of Information request by the Telegraph newspaper revealed last March that 60 percent of the trans-identified prisoners then housed in the Scottish estate had only begun to identify as the opposite sex after they were locked up.

Ms. Medhurst said the new policy had been developed “following extensive research with over 200 men and women in custody, including transgender individuals, as well as experts in violence against women and a broad range of community organisations.”

Defending the policy, cabinet secretary Ms. Constance insisted it “upholds its mission to  deliver safe, secure and suitable services for all.”

She said she was not aware of any “significant consequences” experienced by a prison officer for “misgendering” an inmate, or for any staff who said they were not comfortable searching a trans-identified prisoner of the opposite sex to them.

Ms. Constance added that prison governors have the discretion to ensure a prisoner is searched by an officer of their sex, and not of their “gender identity”, if necessary.

The draft policy follows considerable public anger over the SPS’s handling of transgender double rapist Isla Bryson, previously known as Adam Graham, who was sent to Cornton Vale women’s prison near Stirling to await sentencing after being convicted.

He was later moved to the male estate following a media and political storm over plans to house him alongside female prisoners.

Former First Minister Nicola Sturgeon came under fire for refusing to say whether Bryson was a man or a woman after it emerged he only began transitioning from male to female in 2020 after being charged with raping two women.

Following the fiasco, The Times of London reported that four out of five trans-identified inmates being held in Scotland’s only female prison are serving time for murder.

‘Unlawful Proposals’

The campaign group For Women Scotland said in a submission to the justice committee they believe the new proposals are unlawful and do not take account of existing equality legislation.

“Only those males with a gender recognition certificate in the female gender have a presumed right of inclusion (in the female prison estate). However, we would suggest there are justifiable grounds to exclude on the basis of maintaining privacy in a facility where the majority of sleeping accommodation is shared and/or there are communal toilets and showers, particularly when we know the vast majority of males who identify as trans still have a penis.

“It is our view that the SPS policy is in clear breach of the law and fails to uphold the dignity, privacy and safety of female prisoners. It should not be introduced until significant revisions have been made.”

The Edinburgh-based think tank Murray, Blackburn and McKenzie took part in the consultation process, but said they the Scottish government had already made up its mind to continue with self-identification regardless of its findings.

“We think it is likely that the SPS reached its final policy position, based on gender self-declaration, ahead of the policy process.

“As noted in our submission to the Criminal Justice Committee, despite consulting more widely compared to its previous policy, the SPS has ignored a swathe of relevant evidence and human rights instruments on the distinctive needs and position of women.”