Nicola Sturgeon and her justice secretary have insisted the violent transgender criminals at the centre of the Scottish prisons scandal are women – despite banning them from female jails.
The First Minister said “trans women are women” but they had “no automatic right” to serve their sentences in female prisons.
Although she wants to allow Scots to self-identify their legal gender, she said they could be forced to serve their sentence in male prisons as “significant concern arises out of sexual crime”.
Challenged whether double rapist Isla Bryson and stalker Tiffany Scott were trans women or predatory males, Keith Brown, her justice secretary, said: “If somebody presents as a trans person, then we accept that at face value.”
He said the decision where they served their sentence rested on a Scottish Prison Service (SPS) risk assessment “with all the known facts” and he trusted its “tremendous track record”.
But he was forced to deny that this was undermined by him banning the service from sending any more violent transgender offenders to female prisons. The dramatic U-turn came after he had previously refused to intervene.
Mr Brown also said the Scottish Government would not review the Gender Recognition Reform Bill in light of the Bryson and Scott cases to provide more protections for women’s spaces.
Interim ban
Alister Jack, the Scottish Secretary, has vetoed the legislation, which would allow people to self-identify their legal gender by simply signing a statutory declaration, over concerns it would undermine UK-wide protections for women.
However, current SPS guidance already states that trans criminals should be sent to the prison that matches their self-identified gender that they were living in prior to their conviction.
A review of this policy is underway and Mr Brown announced on Sunday an interim ban on any transgender criminal already in custody with “any history of violence against women” being moved to the female estate.
He also said newly convicted or remanded transgender prisoners in this category will not be placed in a female prison, including those found guilty of sexual offences. They will instead be kept segregated in a male prison.
The ban covers Bryson, who was sent to Cornton Vale women’s prison last week after being convicted of two rapes. Court chiefs had wanted to send Bryson to Glasgow’s men-only Barlinnie prison.
Bryson was named Adam Graham when committing the rapes and has not legally changed gender.
But the SPS guidance allowing criminals to self-identify their gender meant the rapist was initially sent to Cornton Vale. Following a huge public outcry, Bryson was moved to a men’s cell in Edinburgh’s Saughton jail.
The ban also covers one of Scotland’s most violent prisoners, Scott who, when known as Andrew Burns, stalked a 13-year-old girl. It is understood that Scott is not undergoing treatment and has not medically transitioned.
‘It’s just one big con’
Although Mr Brown denied a final decision had been taken, it was reported at the weekend that Scott had also been approved for transfer to a women’s jail.
Ms Sturgeon last week refused to comment on whether she considered Bryson to be a man or woman, insisting that the decision over which prison the 31-year-old was sent to rested on the criminal being a “rapist and sex offender”.
But the first of Bryson’s two rape victims said it is “impossible” the transgender rapist is not a man. The mother of one of his three children said: “It’s just one big con.”
Pressed if trans women were women, Ms Sturgeon told ITV News: “Trans women are women but in the prison context there is no automatic right for a trans woman.
“There is circumstances in which a trans woman will be housed in the male prison estate.” She confirmed this did not apply to people who were born female.
Asked if the situation was different for trans women, she said: “Well, yes. There is a risk assessment process done for trans women that takes account of the nature of the crime.
“Clearly significant concern arises out of sexual crime and whether it’s appropriate for them to be in a female prison or a male prison.”
Five trans criminals in female prisons
Asked if Bryson and Scott were transgender women or violent males attempting to manipulate the system, Mr Brown told BBC Radio Scotland: “If someone presents as a trans person, then we accept that at face value; what we do not accept is that that gives them the right to go to the prison estate of their choosing.”
He added: “It’s not trans people, trans women that present the risk to women by and large, it’s predatory males. I think it’s important to bear that in mind.”
Pressed on the future of the gender legislation, he said “we will not be reversing that Bill” and denied it needed more safeguards for women.
The justice secretary said it already had “provision to allow the police to make an order which would stop someone transition towards” obtaining a gender recognition certificate (GRC).
His ban does not cover the five trans criminals already serving their sentences in female prisons but he said he understood that none had a history of violence against women.
In exceptional circumstances, he said a trans woman could be moved to the female estate but that would require the approval of Scottish ministers. Mr Brown also said he would consider the creation of separate unit for trans prisoners.
‘We need a permanent ban’
The Scottish Tories demanded Ms Sturgeon make a parliamentary statement to clarify Scottish Government policy in the wake of “chaos, confusion and U-turns” by SNP ministers.
Russell Findlay, their shadow community safety minister, also unveiled plans to table an amendment to the SNP’s Bail and Release from Custody Bill to introduce a legal ban on violent transgender criminals being housed in women’s prisons.
The move would make permanent the temporary halt on trans prisoners announced by Mr Brown. Mr Findlay said Ms Sturgeon “needs to explain her government’s shambolic mess and make clear how the safety of female prisoners can be guaranteed”.
He added: “We need full transparency because the only thing clear at the moment is that the justice secretary is in complete disarray. Keith Brown was only shamed into this dramatic U-turn after a sustained public outcry over two highly dangerous criminals.
“But a ‘pause’ on criminals with a history of violence against women being housed in female prisons does not go far enough. We need a permanent ban to safeguard vulnerable female inmates.”
Ian Murray, Labour’s shadow Scottish secretary, said that the Scottish Government had “botched” the handling of the events of the past week.
He said: “I think in all reasonable terms people would see the current issues that are going on around the Isla Bryson case as being unreasonable, and the Scottish Government really do need to sort this out because the Equality Act is clear that single-sex spaces, including women’s prisons, have got to be protected under the law, and it looks in this case as if people are being put in danger.”
