Scottish Prison Service adopts blanket ban on transgender prisoners

The 31-year-old - previously known as Adam Graham - only began identifying as a woman after being charged and has not legally changed gender, although they are taking hormones and requesting surgery.

They were housed in Cornton Vale, Scotland’s only female prison before being moved to Barlinnie. 

The key findings of the case review were released on Wednesday, with the SPS insisting that “at no point were any women in the care of the prison service at risk of harm.”

They said that Bryson “did not come into contact with any other prisoners during their time at HMP&YOI Cornton Vale and that SPS policy was followed during each decision-making process and risk assessment.”

READ MORE: Isla Bryson: Nicola Sturgeon under pressure over trans prisoner report

In a letter to Justice Secretary Keith Brown, the SPS Chief Executive Teresa Medhurst said decisions around Bryson “were in keeping with existing SPS policies and procedures.”

She said the prison service had also committed to “an urgent case review of all transgender women currently managed within the prison estate.”

Ms Medhurst added: “Until these reviews are complete, any transgender person currently in custody and who has any history of violence against women – including sexual offences – will not be relocated from the male to the female estate. 

“In addition, any newly convicted or remanded transgender prisoner will initially be placed in an establishment commensurate with their birth gender.

“If there are exceptional circumstances which support a recommendation that a transgender individual with any history of violence against women be relocated to, or placed in, any part of the prison estate which does not match their birth gender, then I will seek Ministerial approval to do so on a case-by-case basis”

Ms Medhurst’s new restrictions would seemingly include trans people with a gender recognition certificate, meaning someone whose legal gender is female could be placed in the male estate, albeit only initially while they are being assessed.

READ MORE: SNP MSPs join trans prisoner protest outside Holyrood

According to Michael Foran, a Glasgow University law lecturer, that could end up in the courts.

The academic told The Herald: “That policy will be subject to a legal challenge at some point I’m sure. 

“The question will be whether the rights of a GRC-holding legal woman to be treated for all legal purposes as a woman have been disproportionally infringed by the policy

“So having a GRC won’t say what policy will automatically apply to you, but it will give you the ability to sue if you’ve been placed in a prison which doesn’t correspond to your legal gender.

“And the test will then be whether the policy is proportionate or if there is a less onerous way to deal with the safety and dignity concerns.”

READ MORE: Sturgeon rejects blanket ban on rapists in female prison

Last month, Nicola Sturgeon cautioned away from “a blanket approach”.

She told Global Radio's News Agents podcast: “I think as a general principle, somebody who rapes a woman should not be in a female prison. I've said it in Parliament.

“But I do think when we're dealing with the prison population, generally, there needs to be that risk assessment approach, because the danger of taking a blanket approach to anything... is you end up having a different effect to the one you want because you catch cases that should be dealt with in a different way.

“So I think the individualised risk assessment process is strong, but I do believe that is effectively what I said today, there should be a presumption that somebody who is convicted of rape is not in a woman's prison.”

The review gives more detail on Bryson's time in Cornton Vale. 

After conviction on January 24, they were taken by contractor GeoAmey from the court, bound for HMP Barlinnie, but diverted after the prison service was informed of her identifying as a woman.

The court service, the report found, allocates prisoners to facilities based on their sex rather than gender, meaning Bryson was sent in the first instance to the male estate.

The prison service took the decision to house Bryson at Cornton Vale “in alignment with current policy”, the review said, in the separation and reintegration unit.

Bryson was also placed under rule 95 (1) of prison rules, meaning the governor of the facility had ordered “that a prisoner must be removed from association with other prisoners, either generally or to prevent participation in a prescribed activity or activities”, which can be done to maintain order in the prison, protect the interests of any prisoner, or ensure the safety of others.

On January 26, the decision was taken to move Bryson to the male estate whereby the conditions of rule 95 (1) were lifted.

Recommendations made by the review include improved communication within the justice sector and the creation of a “shared justice process” for the admission of transgender people into prisons.

Both Mr Brown and Ms Medhurst will appear before Holyrood’s Justice Committee on 22 February. 

Despite demands that the entire urgent case review be published in full, the SPS has said that they cannot as there “is a significant amount of personal detail relating to the individual and that of staff which would not be appropriate to disclose.”

Scottish Conservative shadow community safety minister Russell Findlay said the findings published were a "whitewash" and revealed "nothing of any substance."

"We still have no idea why a double rapist was sent into a women’s prison or what involvement SNP ministers had in his removal following the public backlash.

"Given the widespread concern and anger, this report should have been published and in full, not just some woolly summary.

"It is an affront to Bryson’s victims that the prison service is pandering to this rapist’s right as justification for their refusal to publish.

“This is typical of SNP secrecy and raises more questions than answers. It is clear that this shoddy stunt is part of the ongoing exercise in damage limitation for Nicola Sturgeon – not a sincere attempt to learn lessons.”