The placement of trans prisoners
The Scottish Government’s interpretation of relevant case law, and the policy’s apparent incompatibility with the 2011 Prison Rules both suggest the need for further clarification in this area.
In response to a parliamentary question by Johann Lamont MSP on how acquisition of a gender recognition certificate (GRC) affects a prisoner’s legal rights in relation to accommodation, the Cabinet Secretary for Justice stated that ‘Acquiring a gender recognition certificate does not and will not give a prisoner any new legal rights’.
Johann Lamont (Glasgow) (Lab): To ask the Scottish Government whether acquiring a gender recognition certificate gives a prisoner any new legal rights regarding the decisions that are made by the Scottish Prison Service about their accommodation. (S5O-04001)
The Cabinet Secretary for Justice (Humza Yousaf): Acquiring a gender recognition certificate does not and will not give a prisoner any new legal rights regarding the decisions that are made by the Scottish Prison Service about their accommodation.
Scottish Parliament, 16 January 2020
The Minister’s response appears to be at variance with Ministry of Justice (MoJ) policy in England and Wales which states that ‘transgender women prisoners with GRCs must be treated in the same way as biological women for all purposes’ unless there are exceptional circumstances:
“The Gender Recognition Act 2004 section 9 says that when a full GRC is issued to a person, the person’s gender becomes, for all purposes, their acquired gender. This means that transgender women prisoners with GRCs must be treated in the same way as biological women for all purposes. Transgender women with GRCs must be placed in the women’s estate/AP unless there are exceptional circumstances, as would be the case for biological women.”
Care and Management of Individuals who are Transgender, updated January 2020, paragraph 4.64.
The MoJ position is based on case law (R (on the application of AB) v Secretary of State for Justice and another  EWHC 2220 (Admin),  All ER (D) 28 (Sep)) which ruled that the decision not to transfer a pre-operative transgender woman to a female prison constituted a breach of rights under Article 8 of the European Convention on Human Rights (for an overview, see here).
Guidance issued by the Equality and Human Rights Commission (EHRC) in July 2018 is also relevant. It makes clear that the single sex exceptions in the Equality Act 2010 apply differently to a trans person with GRC, compared to trans person without a GRC.
“Under the Act, the protection from gender reassignment discrimination applies to all trans people who are proposing to go, are undergoing or have undergone (part of) a process of gender reassignment. At the same time, a trans person is protected from sex discrimination on the basis of their legal sex. This means that a trans woman who does not hold a GRC and is therefore legally male would be treated as male for the purposes of the sex discrimination provisions, and a trans woman with a GRC would be treated as female. The sex discrimination exceptions in the Equality Act therefore apply differently to a trans person with a GRC or without a GRC”
EHRC Our statement on sex and gender reassignment: legal protections and language, July 2018
We also note that the Scottish Government position appears to be at odds with the Prisons and Young Offenders Institutions (Scotland) Rules 2011 (part 13, rule 126) which states:
Female prisoners must not share the same accommodation as male prisoners.
The respective accommodation for male and female prisoners must, as far as reasonably practicable, be in separate parts of the prison.
In a subsequent social media post, Cabinet Secretary for Social Security and Older People Shirley-Anne Somerville MSP stated: ‘SPS risk assessment process in relation to accommodating a trans person takes full account of any risks they may present to other prisoners, to staff and to themselves’. However this fails to address the key question raised by case law in this area, which is about the extent to which possession of a GRC limits the Scottish Prison Service’s discretion.
The Scottish Government’s differing interpretation of relevant case law, and the policy’s apparent incompatibility with the 2011 Prison Rules both suggest the need for further clarification in this area.