Female prisoners ‘at serious risk’ due to trans policy, MSP warns

Prison guidelines on the housing of transgender prisoners are leaving women at risk, an MSP has claimed.

Conservative Tess White raised concerns in the chamber about Scottish Prison Service (SPS) rules which can allow trans women to be placed in female prisons in some circumstances.

These guidelines are the subject of court action being taken forward by For Women Scotland, which argues female prisoners are entitled to single-sex spaces.

‘Sex’ in the Equality Act refers to biological sex according to a major ruling by the Supreme Court earlier this year, meaning female single-sex spaces would exclude trans women.

Justice Secretary Angela Constance said the government was “carrying out assessments across legislation, guidance and policies” in light of that ruling.

But For Women Scotland has been pushing the government to move faster in ensuring the ruling is reflected across a number of areas. On prisons, the group believes continuing under the current guidance means the Supreme Court ruling is being breached.

SPS did clarify its rules on where to house transgender prisoners in the aftermath of the Isla Bryson case. Bryson was convicted of two rapes and was initially sent to a female prison before ultimately being moved to the male estate following an outcry.

The updated rules states the management of transgender prisoners must be “individualised” and balance the rights of transgender people in custody with the “care, safety, and wellbeing of everyone across Scotland’s prison estate”.

That means that when admitted to custody transgender people “should be considered on an individual basis as far as possible”, with no automatic presumption against housing self-identifying trans women in female-only prisons.

The policy further states that trans prisoners will be placed in an establishment that aligns with their biological sex if placing them according to their acquired gender “gives rise to unacceptable risks that cannot be mitigated or this risk is as yet unknown”.

White accused ministers of having “ignored the [Supreme Court] judgment and failed to direct its public bodies to adhere” to it, adding that it put vulnerable women “at serious risk”.

She said: “If these prison guidelines remain, cabinet secretary, I am spine-chillingly concerned about a repeat of the Isla Bryson case where, under the SNP’s watch, a dangerous male criminal was put in a women’s prison.”

Constance replied that the “safety and wellbeing of all prisoners and staff” is “at the core” of her decisions about the SPS.

But she refused to set out her government’s position on the guidelines as it relates to live court proceedings.

First Minister John Swinney used the same defence when questions about the decision last week.

Former Tory leader Douglas Ross raised a point of order on this issue, saying ministers were “hiding behind this fake argument”.

He said: “Ministers are freely able to answer these serious questions and I believe the minister has misled parliament by saying she can’t.”

Presiding Officer Alison Johnstone said it was for the Scottish Government, as a party to the case, to consider the level of detail it was able to divulge.