Nicola Sturgeon says trans women have no ‘automatic right’ to be placed in women’s prisons

The decision to pause sending trans prisoners with a history of violence to women-only jails was made to provide “clarity” to the public, Nicola Sturgeon has said.

The Scottish government has been the centre of trans issues in the UK in recent weeks, after its landmark bill to reform gender recognition laws was blocked by Westminster and a trans woman was convicted of rape. 

On Monday (30 January), deputy leader of the Scottish National Party and justice secretary Keith Brown announced that an “urgent review” into several cases of trans women, charged with assaulting women, is to be carried out.

The move by the Scottish government comes amid controversy surrounding recently imprisoned trans woman Isla Bryson, who was found guilty of raping two women before she transitioned.

A public outcry after Bryson was remanded to Cornton Vale women’s prison prompted first minister Nicola Sturgeon to announce on Thursday (26 January) that Bryson would be moved to a men’s prison.

Brown stated that no trans person in custody would be permitted to move from male to female jails and that newly convicted trans prisoners who are deemed a danger to women would be kept in male prisons.

“As the first minister pointed out last week, we must not allow any suggestion to take root that trans women pose an inherent threat to women,” Brown said.

“As with any group in society, a small number of trans women will offend and be sent to prison,” he added. 

“Therefore, I hope that the measures… will offer reassurance in the ongoing ability of the prison service to manage trans individuals and ensure the safety of all prisoners.” 

Speaking to journalists on Monday, the first minister said: “The arrangements for dealing with transgender prisoners hasn’t changed, they’ve been in place for some time. 

“There has never been an automatic right for a trans woman to serve their sentence in a female prison.

“These decisions are subject to rigorous and robust risk assessment.”

She added: “The cases that have been in the media in recent days, those risk assessments were under way.

“There is no reason to assume that the outcome in both of those cases would not have been that they should be in a man’s prison.

“But given the focus and given the concerns that have been posed as a result of the focus on these cases, what we have done is bring absolute clarity to that.”

Nicola Sturgeon went on to say that the wider trans community should not be stigmatised in discussions around trans prisoners and women’s prisons. 

She said: “We must never lose sight of the fact that trans people, just like the population as a whole, the vast majority never commit any crimes.” 

The first minister also rejected loaded calls from the BBC for the Scottish government to apologise for its handling of the trans prisoner row.

“The government is dealing with this in an appropriate way,” she said. “These are difficult issues. Again, these are issues not associated with recent changes to legislation – legislation which of course is not even yet in force.

“These are issues that many countries are dealing with and we are dealing with them responsibly and in a way that is about giving public satisfaction and public confidence and reassurance. But also, acting in a way that is challenging the notion that trans people generally pose threats to women or anybody else.

“I don’t think there is anything [to apologise for].”

How many trans prisoners are there?

As of September 2022, there are at least 11 trans women and four trans men currently held in Scottish prisons.

This accounts for approximately 0.2 per cent of the population currently imprisoned in Scottish estates, with at least 7,092 male and 280 female prisoners.

Meanwhile, in England and Wales, there are at least 230 trans prisoners – 168 identify as trans women, 42 as trans men, 13 as non-binary, and seven who did not provide a response or identify differently.

According to a report from the Ministry of Justice in November 2022, a large majority of these prisoners were sent to estates that do not correspond with their gender.

The report stated that 181 trans prisoners were in male estates and 49 were in female estates, with six transgender women in female “establishments”.

Of the 11 trans women currently imprisoned in Scotland, six are in men’s prisons.