A Thought for Transgender Convicts in Scotland: What is an appropriate penitentiary system?

The case of housing transgender inmates in Scotland has sparked a heated debate as to whether they should be housed in a male or female prison after transitioning.

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“Advocates have long been pushing for this clarification to make agencies [the Scottish Prison Service] take seriously the health and wellbeing of transgender people in their care," Chris Daley, deputy executive director of Just Detention International, said.

The United Kingdom has issued regulations banning correctional agencies from assigning transgender offenders to male or female units based solely on their anatomical features at birth since 2012. Prior to this, transgender inmates in England and Wales were routinely assigned prison housing based on the gender they were assigned at birth.

The Gender Recognition Act 2004 has made it possible for those who are experiencing gender dysphoria to apply for a Gender Recognition Certificate to change their legal gender. Despite this legislation, transgender inmates continued to report being misplaced in jail. This is because the majority of correctional agencies still maintained general policies or practices that grouped inmates into cells according to their biological sex at birth.

For instance, it was discovered in 2018 that 97 transgender inmates were placed in male facilities in England and Wales. Ninety-two of them identified as female and only two as male. This showed that male-to-female transgender inmates are consistently housed in male facilities, irrespective of their gender identities.

Isla Bryson, Katie Dolatowski, and Tiffany Scott are some trans-women prisoners who have committed various degrees of offences. According to a BBC report, Isla Bryson was made to serve her sentence in a male prison despite identifying as a trans woman. Bryson raped two women, one in 2016 and one in 2019, prior to transitioning, at the time identifying as Adam Graham. Bryson was found guilty of rape in January 2023 and was remanded to Cornton Vale Women's Prison.

While awaiting trial, Bryson transitioned to her current female identity. Ms Bryson later served her sentence at HMP Edinburgh, a male prison. However, this was not the case for Ms Dolatowski and Ms Scott. According to the Scottish Prison Service (SPS), “it considers the risks posed by and to the individual prisoner when deciding where they are sent.”

More recently, First Minister Nicola Sturgeon said acquiring a Gender Recognition Certificate did not pave the way for transgender prisoners to be housed based on their self-identified gender. Scotland’s LGBTQ+ community has raised multiple concerns on housing transgender inmates, however, Scottish Justice Secretary Keith Brown has indicated that transgender prisoners with a history of gender-based violence would not be accommodated in a women’s prison.

““There is no automatic way for a trans woman convicted of a crime to serve their sentence in a female prison, even if they have a Gender Recognition Certificate.

“Every case is subject to rigorous individual risk assessment, and as part of that, the safety of other prisoners is paramount,” Mr Brown said.

Rhona Hotchkiss, a former governor for Corton Vale prison, described the whole process as unnecessary, stating her belief that such inmates should be housed based on their gender at birth.

"I think that this has been an unnecessary shambles. I would have refused to have this person [Isla Bryson] in Cornton Vale, I'm afraid," Ms Hotchkiss said in an interview with BBC Scotland.

The LGBTQ+ community has raised concerns that these arrangements by the Scottish government and the Scottish Prison Service have dire implications on the care and wellbeing of transgender inmates. They opted that portions of the Gender Recognition Act 2004 be amended to prevent further infringement on the rights of transgender inmates.

As part of their quest, “trans and non-binary people should be permitted to access single-sex spaces unless there is a proportionate and legitimate reason for not allowing this,” they said. Additionally, they said these must be decided on a case-by-case basis.