Transgender prisoners with a history of violence against women and girls can be placed in the female estate if there is “compelling evidence” they do not present an “unacceptable risk of harm”, a new policy has stated.
The Scottish Prison Service (SPS) has published its Policy for the Management of Transgender People in Custody.
No transgender woman with a history of violence against women and girls (VAWG) can currently be housed in the female estate.
The interim arrangements for admission were introduced earlier this year following a public outcry over the controversial Isla Bryson case – which saw a transgender woman initially placed in the female estate after being found guilty of raping two women.
The interim approach will continue until the new policy officially comes into force on 26 February 2024.
The SPS’s new “individualised” policy will see transgender women initially placed in the male estate until sufficient information is known on whether they can be admitted in accordance with their chosen gender.
If placing them in the female estate “gives rise to unacceptable risks that cannot be mitigated”, inmates will not be placed in a women’s prison.
Offences against women and girls that will be taken into account include murder; culpable homicide; assault; robbery; abduction; threatening personal violence; rape; sexual harassment, bullying and intimidation – including in the workplace; commercial sexual exploitation – including trafficking, prostitution, lap dancing, stripping and pornography; and breach of the peace.
Transgender prisoners that have been convicted, remanded or are awaiting sentencing for those types of offences will not be eligible for admission to a woman’s prison “unless the risk management team, and subsequently the executive panel, are satisfied there is compelling evidence that they do not present an unacceptable risk of harm to those in the women’s prison”.
Speaking to Sky News, the chief executive of the SPS said she is “confident” the updated policy will address any concerns about violent transgender women being placed into the female estate.
Teresa Medhurst said: “With a trans woman, if we have information that suggests that they are a risk and pose a risk to others because of previous history of offending related to violence against women or girls, then they will be assigned into the male estate.
“If we don’t have sufficient information in which to make that assessment or decision, then they will go to the male estate as well.”
Ms Medhurst said the situation with transgender men is “slightly different” and decisions will be taken on where they can be managed safely.
She explained that if there’s a lack of information, “they will move into the female estate until the initial case conference can be held and we can look at all of the information that we have or can gather in relation to risks, needs, as well as their rights”.
The SPS said the policy aims to support the rights of transgender people, the welfare of others in custody, as well as prison staff.
Where SPS has insufficient information about an individual who is arriving into custody, they will be admitted in accordance with their sex at birth.
SPS also retains the ability to admit and accommodate individuals with a Gender Recognition Certificate (GRC) in accordance with their sex at birth, if it is considered necessary to support people’s safety and wellbeing.
Only when staff have enough information to reach a decision that a trans individual can be safely accommodated will they be placed in an establishment which matches their affirmed gender.
The policy will also allow for inmates to be searched by officers of their affirmed gender or their sex assigned at birth, if it is necessary to keep the individual or staff safe.
The SPS will take into account their background and history of offending when making a decision on where they will be placed.
Ms Medhurst said SPS will look at how far along the inmates are in transitioning and what kind of medical support they have been accessing.
She added: “So, we’ll use all of that information around both their journey as well as their behaviours, their current offence, previous offending, and any other information that is known about the way that they’ve been behaving and presenting whilst in the community.”
The new policy was developed following extensive engagement and input from experts in violence against women, men and women in custody, transgender people, those who have experience of managing transgender people in custody, and a broad range of community organisations.
The policy review came under the spotlight following the case of transgender double rapist Isla Bryson, who was jailed earlier this year for attacking two women.
The attacks were carried out in 2016 and 2019 when Bryson, who was born Adam Graham, was living as a man.
An urgent case review was ordered by Scotland’s then justice secretary after Bryson was initially housed in segregation at Cornton Vale women’s prison near Stirling while awaiting sentencing.
Bryson was quickly moved into the male estate following a public outcry.
The review concluded that women were not at risk from harm as a consequence of the management of Bryson.
Isla Bryson arriving at the High Court in Glasgow earlier this year
Ms Medhurst accepted that there was a lot of public interest over the Bryson case but said she could not discuss individual inmates.
She added: “There was a lot of public interest, a lot of parliamentary interest, and therefore I am confident that the new policy will address those concerns and ensure that there is continued public confidence in how we operate as an organisation – because we have more than 20 years of managing transgender men and transgender women in custody.”
Read more from Sky News:
Transgender double rapist complains of ‘transphobic abuse’ in prison
Man abducted and sexually assaulted schoolgirl while dressed as a woman
Ms Medhurst highlighted that the SPS oversee the “highest risk and most vulnerable people in our society” on a daily basis, and staff manage that risk “extremely effectively”.
Ms Medhurst said: “Transgender men and transgender women in custody are a very small minority and they can be extremely vulnerable.
“And what we need to do is balance and manage those vulnerabilities, the risks and the rights in a way that protects everyone within our prisons – so those who live there and those who work there.
“And that’s what this policy will deliver.”
