It was sparked in large part by the widely reported case of Isla Bryson – convicted of two rapes, who was briefly held in segregation in Cornton Vale, the women’s prison, while a risk assessment was made about which estate she would be placed in. Unsurprisingly, given her crimes, that risk assessment resulted in her being housed in the male estate.
Since then, stories of several other trans people in custody have been in the spotlight. This media attention has resulted in a pause on the transfer of any trans person with a history of violence against women to the female estate, and a presumption that those with this offending history should be held on the male estate, in segregation, before a decision is made about where they will be housed.
My organisation was involved in the development of the Scottish Prison Service’s first trans policy, around ten years ago. We were also invited to respond to their consultation on the review of the policy last year. Let me explain our position on this, and why we hold it.
Historically, pretty much every trans person was held on the estate that matched their sex recorded at birth. So trans women in men’s prisons, and trans men in women’s prisons. This typically resulted in trans people being kept in segregation for the majority, if not all, of their time in custody. Why? Because they often faced discrimination, abuse, assault, and sexual violence in the general prison population.
Or, they had intense mental health crises. This approach simply did not work. Trans people were in danger, isolated, and in extreme distress. Treating all trans people in custody that way is also not compliant with human rights standards.
Trans people are diverse and different. Some of us are not visibly trans to those around us. Some of us are. Some of us have had surgeries to make our bodies more comfortable for us to live in. Some of us have not, maybe because we are still waiting, or do not feel we need them, or have other medical conditions that mean it would not be safe.
Some of us have been living as our true selves for years, in stable and safe conditions. Some of us have not, perhaps struggling with family rejection, homelessness or mental health problems. Where we are along these spectrums, and more, can have a big impact on our needs and vulnerabilities.
Just like with every community, some trans people will commit crimes. Although the cases reported recently have been of those who have committed appalling sexual or violent crimes, that is of course not always the case. A trans person might be in prison for insurance fraud, or drink driving, for example.
It has always been our view that the most important factor in making decisions about how to house trans people in custody is safety. The safety of everyone. That is why, in 2014, and when we were asked again last year, we made the case that there should be a risk assessment in the case of each trans person.
There are currently 20 trans people in prison in Scotland (0.27 per cent of the prison population). SPS routinely uses risk assessments for all kinds of people in custody, so this is not an unusual approach to taking decisions about where to place people. The risk assessment should consider all risks associated with a person being housed in the women’s or men’s estates, and in general or restricted populations, then they should be placed accordingly and regularly reviewed.
It’s our view that anyone who has committed sexually violent crimes, and who poses a risk to women, should not be housed with women on the female estate. For the approach to work, it is essential that everyone’s safety is considered. Where the risk assessment finds no genuine reason to decide otherwise, a trans person should be housed in the estate that corresponds with their identity. This does not necessarily mean the experience for a trans person is identical to everyone else’s. When it comes to things like sharing cells, or using showers, it may be necessary to treat trans people differently, to increase privacy for all.
It is fine, and right, to have rules, for example, about offending histories that make people unsuitable for transfer to the women’s estate, and guidelines on how previous behaviour in custody will be considered. But calls to revert to a situation where trans people are always housed on the estate that matches their sex recorded at birth would see a return to an approach we already know can have devastating consequences. It would be an approach that did not, in fact, seek to put safety at its heart.
I share concerns about the safety of women in prisons. Prisons are unlike almost any other situation: confined, no choice about who you are around, no way to leave. The majority of women in prison are survivors of domestic abuse and sexual violence, and have rarely committed sexual crimes. Separated from their children to the detriment of everyone, their families paying a greatly oversized cost. Depriving people of their freedom for non-violent, non-sexual offences should be something that we almost never do, and certainly much less than we do now. That is an even bigger conversation which we all need to have.
But in the current reality of prisons, trans people and Scotland, the only approach that can be taken is one that looks at each trans person as an individual. Whilst blanket bans and rules about whole groups of people can feel reassuring, they very often lead us down a path we don’t want to follow. It is important to focus on the facts, and take decisions that place the safety and human rights of everyone at their very centre.
Vic Valentine is manager of Scottish Trans