Why Scotland’s gender reform bill is sparking concern over trans prisoner policies

<span>Photograph: Murdo MacLeod/The Guardian</span>
Photograph: Murdo MacLeod/The Guardian

The outcry over the placement of the convicted double rapist and transgender woman Isla Bryson in a women’s prison is set against anxieties about Scottish Prison Service policy on trans prisoners and how Scotland’s gender recognition law changes could affect that.

In 2014, the Scottish Prison Service (SPS) introduced its gender identity and gender reassignment policy, which it developed with the Scottish Trans Alliance and is currently being updated. It advises that where an individual is permanently living in a gender other than that assigned at birth, “establishment allocation should usually be the new gender in which they are living”.

Related: Trans woman found guilty of rape will not be held in women’s prison, says Sturgeon

This is applied on a case-by-case basis and subject to a detailed and continuing risk assessment. This policy applies regardless of whether a prisoner has a gender recognition certificate (GRC), and, as both the SPS and Scottish government have stressed in recent days, there is no automatic right for a transgender prisoner to be accommodated according to their acquired gender.

The numbers in question remain very small in Scotland: trans men and trans women comprised 0.05% and 0.15% of the prison population respectively as of September 2022, the latest period for which data is available. There were 15 transgender prisoners in custody – 11 trans women andfour trans men.

Of those 11 trans women, six are held in the men’s estate and five in the women’s estate. Of the four trans men, one is held in the men’s estate and three in the women’s estate.

Following a freedom of information request last autumn, the SPS confirmed to the Times that half of trans inmates – then 16 – began their transition after they were convicted.

Last December there were protests outside Cornton Vale, where Bryson was taken after conviction, over the decision to transfer Katie Dolatowski, who was convicted of sexually assaulting a 10-year-old girl.

In England and Wales the policy is markedly different. While there is the same rigorous risk assessment, more than 90% of transgender women in prison are housed in men’s prisons and there is no obligation to move transgender prisoners according to their wishes. Those without a GRC are sent to the prison according to their sex assigned at birth “as a matter of course”.

People with knowledge of both systems suggest that more inclusive policies are easier to test out in the much smaller Scottish estate.

Recent moves by Dominic Raab, the UK justice secretary, suggest a greater divergence. In October he announced plans to change policy on the allocation of transgender prisoners. “Under the reforms, transgender women with male genitalia, or those who have been convicted of a sexual offence, should no longer be held in the general women’s estate.”

Across England and Wales 230 transgender prisoners were recorded in the year ending March 2022, and 187 of those recorded their legal gender as male, and 43 were recorded as female.

During the progress of the the gender recognition reform (GRR) bill, multiple concerns were raised about the impact on prison policy of simplifying access to a gender recognition certificate. Current SPS policy means prisoners can seek to change their legal sex while already in custody, with relocations decided on the same case-by-case and risk-assessed basis.

Lucy Hunter Blackburn, of the policy analysts MurrayBlackburnMackenzie , told Holyrood’s equalities committee that the bill should be amended to exempt prisons from having to recognise the trans status of prisoners, warning that the bill could bring about legal challenges.