Trans women in Scottish prisons
This article discusses the following conversation between Nicola Sturgeon (SNP) and Douglas Ross (Conservative):
On 26th January 2023 Douglas Ross asked Nicola Sturgeon: Should a convicted rapist ever serve time in a women’s prison? This question was raised due to Isla Bryson, a trans woman, being convicted of rape on 24/01/2023, and then held in a women’s prison for two days in segregation to be assessed as to whether she was a threat to general women’s population of the prison. It should be noted that shortly after FMQs the Scottish government confirmed that Bryson would not be held in a women’s prison, so I want to focus both on the overarching question raised by Ross.
Neither Sturgeon or Ross called Bryson by her name, nor used she/her pronouns. Indeed, throughout the 12 minute exchange, Ross consistently referred to Bryson by male pronouns, calling her a beast, and essentially dehumanising her. I appreciate that convicted rapists are the last people we should empathise with, but the tone of the PMQs essentially stripped Bryson of her identity. It is an emotive conversation, especially with the UK government blocking the Scottish changes to the Gender Recognition Act (GRA) precisely because of the fear that “men” would abuse the GRA to prey on vulnerable women. Bryson deserves to be punished for her crimes, and will serve whatever time the judge deems appropriate. However, by stripping her of her gender identity and making her an animal Ross is playing with right wing dog whistles that seek to undermine the rights of all trans folk, trans women in particular. At no point did Sturgeon correct Ross on his use of pronouns.
Ross pushed Nicola Sturgeon to confirm that rapists should never serve time in a women’s prison. Sturgeon punted the question. Indeed, when asked for a second time she pointed out that even with a Gender Recognition Certificate (GRC) a trans woman has no automatic right to serve her time in a women’s prison. Essentially, this once again reinforced that even if you have a GRC trans women are something less of than women. The emotive quality of Bryson’s conviction as a political football has played out before in England, where several trans women rapists have previously been sent to a male prison to serve their time. Sex crimes are repugnant at every level, yet essentially trans women are treated according to their genitals rather than their gender identity by both the Scottish and English prison systems.
It is a complex problem that needs to balance out the safety and security of women in prison and the gender identities and well-being of trans folk. According to the UK’s Crown Prosecution Service (CPS) “legally, a person without a penis cannot commit rape, but a female may be guilty of rape if they assist a male perpetrator in an attack”. Yet when Douglas Ross talks about not having rapists in women’s prisons he missed that women convicted of sexual offences are still locked up alongside other women. No politician is going to stand up and state that sexual offenders serve time alongside women, indeed no politician is going to rebut that the vast majority of sexual offences in women’s prison are carried out by other women or guards. Sexual abuse is not solely the prerogative of men, and for women to be truly safe in prison the whole system needs reforming. It is not a single trans woman who is the biggest danger, yet Bryson is a risk to the general population of a women’s prison.
Isla Bryson is clearly someone who should not be serving time in a women’s prison, yet she should not be dehumanised or sent to serve in a men’s prison where she faces the threat of sexual abuse and harm. She serves as a lightening rod for all the anti-trans women rhetoric cast about, with no allies to defend her right to be even called a woman. If the answer is a segregated trans women prison then in the short to medium term this should be the solution. As much as we want retribution for crimes committed, cruelty and callousness are never the answer, from all sides.
The wider point about GRCs created a lesser citizenship still stand. Neither Ross or Sturgeon had the time or political space to get to the heart of this. Yes, Ross defended the good trans women, yet in dehumanising Bryson he fell back on right wing tropes. Justice has been severed for Isla Bryson, and she will do her time, likely in a male prison, yet overarching points raised in the FMQs about trans women in Scottish prisons remains at the judgement of civil servants and politicians. That Sturgeon felt the need to step in after the FMQs to remove Bryson from a women’s prison is a sign that Bryson’s case is as much political as it is about the safety of women.
No one likes to talk about the hard cases, to defend the rights of rapists and murderers, for they are the seemingly indefensible. Yet, in a justice system that has defined boundaries, regulations, and guidelines for prisons to follow, where complexity happens there needs to be a wider conversation about the impact of the decisions reached. That Sturgeon went out of her way to clarify that a GRC is not automatic womanhood has wider implications, for the next time another emotive or controversial situation arises with respect to a trans person, her opponents will point to Isla Bryson and push back harder.
Bryson is but a skirmish in the wider tussle for trans rights and trans normativity. I think Nicola Sturgeon recognised that and acted as much to cut off the attacks about the proposed GRC changes than to simply listen to women’s advocates. Women have every right to be and feel safe, including trans women. Yet, the way the law and societal conversation is currently the innate tension will always come to a head in the worst example, such as Isla Bryson. This is a delicate matter, one which cannot simply be squared either by saying trans women are women or adult human female. It comes down to a duty of care to prevent harm to vulnerable women, and in turn not stripping rights from law abiding trans women.
