What is the policy for trans people in prisons in the UK? 5

What is the policy for trans people in prisons in the UK?

The Scottish Government has been embroiled in a row after a trans woman was remanded to a women’s prison after being convicted of raping two women. 

Ferret Fact Service explains what happened. 

Ferret Fact Service | Scotland's impartial fact check project

What’s this case about?

On 24 January, Isla Bryson was convicted of two attacks on women in 2016 and 2019. The crimes were committed while she was known as Adam Graham, but while awaiting trial, she began transitioning and is now known as Isla Bryson. 

After being convicted, Bryson was taken to a women’s prison, HMP Cornton Vale in Stirling, for a risk assessment ahead of sentencing next month. She was segregated from other prisoners while held there.

This led to significant controversy from some campaigners and politicians due to the nature of the crimes committed and the fact Bryson was held in a women’s prison instead of a men’s facility. 

The first minister Nicola Sturgeon then announced on Thursday that Bryson would be moved to a men’s prison. 

How many transgender prisoners are in the UK and in Scotland? 

The most recent statistics from November 2022 show there were four trans men and 11 trans women in Scottish prisons. One trans man was in a men’s prison while three were held in a women’s prison. 

Six trans women were held in men’s prisons and five were held in women’s prisons. There were a further three non-binary or gender fluid people in prison.

In England and Wales there were 230 trans people in prison as of March 2022. 

According to ministry of justice (MoJ) statistics, 187 trans people reported their legal gender as male, and 43 as female. Of these people, 181 were in male prisons and 49 were in womens. Six transgender women were in women’s prisons.

What’s the current policy in Scotland and the UK?

The Scottish Prison Service (SPS) said it takes a “person-centred risk informed decision” on where people who are transitioning gender are placed in prison.

In its latest statistical report, SPS states: “For this reason, some individuals are located with their social gender and some are not”. 

SPS adopted a ‘gender identity and gender reassignment policy’ in 2014. It states that: “Where the person in custody is permanently living in their new social gender instead of the gender they were assigned at birth, then establishment allocation should usually be the new gender in which they are living”.

A trans woman “should not be automatically regarded as posing a high sexual offence risk to other people in custody,” the guidance states

It goes on to state that if a trans woman has “clear evidence that she, as an individual, may pose a sexual offence risk, then this should be dealt with as for any other person in custody posing a risk.” 

The SPS policy is currently being reviewed, and likely to be published in coming months

The UK Government is planning to alter its policy of transgender people in prison in England and Wales.

According to its announcement the new policy would mean “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”. 

The document states that currently “more than 90 per cent” of trans women in prison are in men’s prisons and most do not ask to be moved to a women’s prison. There is no obligation for authorities to move a trans person to a different prison if they request it. 

Would this be impacted by the gender recognition reform bill? 

The gender recognition reform bill which was passed by the Scottish Parliament in December 2022 was blocked by the UK Government through a section 35 order, after it stated the bill would impact on the application of the UK-wide Equality Act 2010.

The bill aims to make it easier for trans people to gain a gender recognition certificate (GRC) by requiring a self-declaration instead of medical evidence of gender dysphoria. It also lowers the age when someone can apply for one. 

The bill did not have any specific provisions relating to where trans people are placed in prison, but did commit to a review of whether the bill would have any impact on the prison population.

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