The flaw in Scotland’s new transgender prison policy

Almost twelve months after rapist Isla Bryson was sent to a women’s prison, the Scottish Prison Service has come up with a new transgender policy. From 26 February 2024, transwomen – including male transsexuals like me – will be barred from the female estate if they had been convicted of crimes that harmed women. Quite right, but behind the headlines – Trans women who hurt females to go to male prisons, according to the BBC – the devil is in the detail.

Transgender criminals, including those with a history of violence against women, will be eligible to be admitted to women’s prisons if there is ‘compelling evidence’ that they do not pose an ‘unacceptable risk of harm’. But who is to say what is compelling and what is unacceptable? This failure of policy makers to grasp the nettle is an affront to women in prison. Those women cannot choose their roommates. They are at the mercy of the state, and this policy – laced with loopholes – lets them down.

Perhaps predictably, the Scottish government has other priorities. Speaking to the BBC, Justice Secretary Angela Constance explained that the new policy protected the ‘safety and welfare’ of staff and prisoners, and the ‘rights of transgender people’. That may be so, but the rights of one group must not be used to trample over the rights of another. Transwomen are not the same as women – we are the opposite sex, after all – and our needs should not be conflated with women’s.

Women are a small and vulnerable group in the prison estate. Recent official Scottish prison population statistics recorded just 282 incarcerated women in 2021-22, compared to 7,220 men – less than 4 per cent of the total. Women also tend to be convicted for different crimes. According to Ministry of Justice figures for England and Wales, theft from shops was the most common indictable offence for female defendants.

Transwomen are a rather different group of people. In 2018, the BBC Reality Check team found that 48 per cent of transgender offenders were serving time for a sexual offence (the figure for the general prison population is just 19 per cent). This is not a group that should be housed with women, even if they can argue that they no longer pose an ‘unacceptable’ risk of harm.

Let’s be clear, though, not all transwomen are sex offenders, and misadventure also leads to custodial sentences. Personally, I worry that a momentary lapse of concentration on the motorway could lead to disastrous consequences. While I always try to drive carefully, nothing is certain in life.

But we do not house males with women because they happened to have caused death by careless driving, and we should not make an exception for transwomen, no matter how safe they appear to be. Bending the rules for one makes it much harder to exclude others. Besides, there is a principle involved: transwomen are male, and females must have an absolute right to single sex accommodation.

That does leave the question of where to accommodate transwomen, including those whose bodies may look more like women’s bodies than men’s bodies – certainly in the shower.  It would be a brave prison governor who placed me, for example, in the male general population. However, plan B should not be the female estate. Vulnerable male prisoners need to be accommodated within the male estate. It may cost more – a specialist unit for example? – but the rights of women must not be compromised.

The Scottish government needs to take this policy back. If it cares as much for the women of Scotland as the transwomen of Scotland, it must come up with a protocol that protects both groups separately.

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Debbie Hayton is a teacher and journalist.

* This article was first published by The Spectator on 5 December 2023: The flaw in Scotland’s new transgender prison policy.