Scotland revisits the accommodation of transgender prisoners
Charity Agasaro – 13 February 2023
The Scottish justice secretary, Keith Brown, recently announced a pause on the transfer of transgender prisoners to women’s-only prisons in Scotland. Brown’s announcement came with the news that transgender prisoners with a history of violence against women will not be given the opportunity to transfer to prisons that match their chosen gender identities. With transgender people making up 0.2% of the prison population, Nicola Sturgeon’s government is facing calls to either ban the accommodation of transgender women from women’s prisons, or assign separate wings for them. As the Scottish prison service revisits the cases of all transgender inmates, Sturgeon has declared that she will be assessing the cases individually and not follow a blanket approach.
This is not the first time the topic of transgender prisoners has sparked national debate. In 2021, a female prisoner challenged the Ministry of Justice’s policy to place transgender women in women’s prisons. The high court however argued that the policy was lawful, and aims to respect the rights of transgender people while protecting their mental and physical health. However, even with confirmation from the high court, individual decisions can still be challenged.
The Scottish prison dilemma comes on the heels of Scotland’s Gender Reform Bill. The bill aims to eliminate some of the biggest hurdles that people face when seeking gender recognition. A few proposals in the bill state that transgender people in Scotland would not need to get medical diagnosis for gender dysphoria, and they would be able to apply for gender recognition certificates at 16 instead of 18. Critics of the bill however argue that it may have a negative impact on prison transfers, equal pay, and single sex spaces. Yet, after the bill was passed in the Scottish parliament, it was controversially blocked by Rishi Sunak’s government. With a request from Sunak’s government for the bill to be amended, Scottish leaders in favour of the bill maintain that blocking the bill undermines Scottish democratic processes and the rights of transgender people. With its implications for the criminal justice system and political sensitivity surrounding the bill, those with an interest in criminal law should keep a close eye as the story develops.