Why does the Scottish Prison Service hold men convicted of murder in the female prison estate? A policy timeline
Introduction
On 3 and 4 February, the Scottish Government is heading to court to defend the Scottish Prison Service’s policy (2023) on the management of transgender prisoners. In a judicial review brought by grassroots campaign group For Women Scotland, government lawyers will seek to defend a policy that allows for the placement of violent men in the female estate. The Scottish Government has published its arguments here.
Immediately ahead of this, on 28 January the case of David Toshack vs Geo Amey Ltd. will be heard at the Edinburgh Employment Tribunal. Mr Toshack was dismissed from his role as a prison custody officer, during the final week of his six-week introductory training course. Mr Toshack had stated that he would not be comfortable recording male prisoners as females (and vice versa) on Prison Escort Record Forms because of his gender critical beliefs. He was dismissed with immediate effect. GeoAmey’s policy on the treatment of transgender prisoners follows that of the SPS. GeoAmey argue that Mr Toshack’s dismissal was necessary to ensure compliance with their contract with the SPS to provide prison custody services.
Policy timeline
This blog sets out a timeline as to how the SPS policy came about. Our aim is to put all the relevant material in one place, to tell the long and complicated story behind the current court case. For that reason, the blog is lengthy.
The timeline shows that the Scottish Prison Service (SPS) reached its current policy position by a messy, ill-documented route, in conjunction with lobbyists. There is no proper audit trail for its first transgender policy published in 2014, which the SPS maintained adhered to the Equality Act 2010. As shown below, the policy simply expanded on existing practices that saw dangerous men housed in the female estate.
In early 2023 the Isla Bryson/Adam Graham scandal unfolded, prompting interim emergency measures that retained the previous commitment to a policy based on gender self-identification.
In December 2023 the SPS published its current policy. Despite wider consultation, the SPS rehashed the same position. As before, the current policy disapplies safeguards designed to protect women for a small group of men, based on nothing more than a declared and non-falsifiable identity claim. Giving evidence to the Scottish Parliament’s Criminal Justice Committee in January 2024, SPS Chief Executive Teresa Medhurst would not categorically rule out the possibility that a male with a record of violence against women could be placed in the female estate.
In developing the current policy, we think it likely that the SPS began with a commitment to self-identification principles. Instead of asking why any men should be allowed to access the female estate, we think it most likely focused on developing a policy that ensured at least some men would be allowed access. To reach this position, it has ignored and/or downplayed relevant evidence relating to the vulnerability and trauma of women prisoners, male offending risks, and human rights standards.
The SPS maintain that it cannot uphold a blanket ban on placing men in the female estate and that this is incompatible with its requirement to recognise gender identity. But this ignores that trans-identified males are routinely housed in the male estate, and that its case-by-case policy indeed embeds that as a potential outcome. It also appears not to recognise as a failing that its own record of risk assessment has seen violent men placed in the female estate, including those convicted of murder, torture, and sexual assault.
Cases of men in the female estate
We have included some known cases in the timeline below. This includes the three male prisoners (Green, Stewart, Young) understood still to be held with women, as well as prisoners reported to have been held with women in the past. We also include some cases where the SPS planned to hold the prisoner with women, but did not do so. HMP Cornton Vale was main women’s prison in Scotland for most of the period, until 2023 when it closed, with smaller women’s wings or units units in other parts of the estate. Young offenders were mainly housed at YOI Polmont, in separate male and female wings. There was also a young offenders unit at Cornton Vale.
Note that the information about these cases comes from press reports. From figures published in the past, we do not believe it is a complete list of all the relevant cases: the SPS does not publish information about or comment on specific individuals moved into opposite-sex prisons. It also no longer releases any data about the number of cross-sex placements, and has never published information on the offending histories of these cases.
Given the confusion that can sometimes arise over what is meant by the term ‘transgender’, it should be noted that press reports relating to those men who have been moved into women’s prisons suggest a very mixed picture as regards the amount of physical change undertaken, and so no general assumption should be made about that. Available data suggests that the majority of prisoners who express a cross-sex identity now begin to do so after entering the prison system. This appears to be a change from the situation before the policy was introduced, when a small number of male prisoners were placed in the women’s estate in an ad hoc way, as we note below.
SPS trangender prisoner policy: A timeline
2006: SPS house prisoners in opposite sex prisons
According to the Scottish Government’s Note of Argument to the court, the SPS has housed prisoners in the opposite sex estate since at least 2006 (see page 7).
‘There have been instances of transgender prisoners being held in prisons for those of the opposite biological sex since, at latest, 2006. Only a minority of transgender prisoners have been held in prisons of the opposite sex. The number of prisoners so detained has been low.’
2007: Early policy development
In 2007 work begins on a new SPS transgender prisoner policy, in close collaboration with the lobby group Scottish Trans Alliance (STA). In the same year the STA secures Scottish Government funding, as a project of the Equality Network, an Edinburgh-based LGBT organisation.1
For the STA, the policy appears to act as a bridgehead for its wider ambitions. Then STA manager James Morton later states the STA ‘strategised’ that the introduction of gender self-declaration in Scottish prisons would enable the adoption of the same policies in other public services.
Source: Morton, J. in Trans Britain (ed. Burns, C.) 2018: 215.
Who wrote the policy?
An academic paper published in 2020 (Cowan et al.) co-authored by a member of Scottish Trans staff states that STA manager James Morton wrote the first outline of the SPS policy.
‘Like most new policies, the SPS trans policy started with a working group, of which James Morton was a member. As the only trans person and the manager of an organisation specifically set up to support public bodies in developing trans equality policies, Morton was tasked with writing a first draft outline of what such a policy might look like.’ (page 17)
Missing audit trail
According to Cowan et al. the policy document went through ‘countless revisions’ over a seven-year period and ‘passed through no fewer than a dozen hands, most of whom were non-trans women’.
The SPS could however only find two previous drafts, dated March 2011 (labelled ‘Final Draft Version) and a ‘Final consultation draft’ dated August 2011. Both drafts list James Morton as the author in the metadata.
The draft dated 12 August 2011 contains a note which states ‘Asked Scottish Transgender Alliance to write the forward’. This raises at least the possibility that the text attributed in the published version to the Chief Executive of the SPS at the time, Colin McConnell, was authored by external lobbyists.
The SPS is otherwise unable to provide an audit trail of the policy development process. It told us, ‘as a result of changing personnel and the publication of the final policy document in 2014, it is reasonable to assume that all previous drafts were deleted after a period of time from our corporate records’ (email correspondence, 24 March 2022). It also holds no correspondence with the STA on policy development.
This leaves an asserted seven years of work with no audit trail of how the proposed policy developed or exchanges between the SPS and the main organisaton providing external input.
Unknown date in 2010: Joseph/Nicola Wilson charged with violent offences and remanded to HMP Cornton Vale
At some point in 2010, with the SPS policy still under development, Joseph/Nicola Wilson is remanded to Cornton Vale, charged with assault, breach of the peace and threatening behaviour.
At the time he is awaiting gender reassignment surgery. A prison officer tells the press, “We have had full-on transsexuals before but never someone who is half way through the procedure.” The article adds that it is believed that Wilson “was sent to the female nick because she’s been actively living as a girl for six years”.
Wilson serves 14 months in Cornton Vale.
Shortly after his release, he is returned to Cornton Vale for drunk and disorderly behaviour. Wilson is later supported by Turning Point 218, a Glasgow-based service working with women offenders (this closed in 2024 due to cuts in funding provided through Glasgow City Health and Social Care Partnership).
Criminal history
Prior to this conviction Wilson had a history of violence. In 2008 he kicked a policeman in the face, whilst on curfew for previously assaulting two police officers.
January 2011: Law Society of Scotland journal
Within months of the Equality Act 2010 coming into effect in October 2010, an article in the Law Society of Scotland journal by Petra Boldt and Chris Phillips (Maclay Murray & Spens LLP) reinforces the developing SPS policy direction as in line with the requirements of the Act.
One of authors (Philips) is an an employment law specialist, although we cannot find any other commentary from him on prisons or gender reassignment. We cannot find any information at all about the other author. The analysis advises:
‘Wherever possible transgender suspects or offenders have to be placed in a prison along with people from their chosen non-birth gender, whether or not they have changed their physical sex appearance or received a gender-recognition certificate.
This approach may only be varied under special circumstances where, for example, health and safety risks necessitate accommodation of a trans inmate along with prisoners from their birth gender or in isolation.’
March to November 2011: Changing the prison rules
In 2011, mid-way through the policy development process, the SPS consult on revising the Prisons and Young Offenders Institutions (Scotland) Rules 2006, which set out statutory rules for managing Scotland’s prisons.
For the purposes of categorising and searching prisoners, the revised 2011 Rules replace references to ‘sex’ in the 2006 Rules with ‘gender’. The 2011 Rules continue however, to provide for accomodation segregated by sex, subject to minor rewording.2 Rule 126 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.’
Is there an audit trail for the rule change?
No. The SPS cannot provide an audit trail for why ‘sex’ was removed from the Rules. In response to a Freedom of Information request,1 the SPS provided a summary of consultation responses. These do not mention replacing ‘sex’ with ‘gender’.
The only specific reference that the SPS could locate was to a summary of a meeting with the Governor in Charge (GIC). Under the proposed changes for the classification of prisoners, this states ‘Change the reference to “sex” to “gender”‘. It appears that no position was agreed at the meeting.
More details on the changes made in the 2011 Prison Rules can be found here:
May 2013: Stuart Kelly/Katelyn Findlay charged with robbery and threatening behaviour and remanded to HMP Cornton Vale
In May 2023 Kelly/Findlay is charged with robbery and threatening police officers and remanded to Cornton Vale. He is sentenced in June 2013 and returned to Cornton Vale on conviction.
The Daily Record describe Kelly/Findlay as a ‘pre-operative male-to-female transsexual’. The Herald report that Kelly/Findlay is housed in Cornton Vale because he is ‘actively living as a female [for at least two years, the article states elsewhere] but has not yet officially started the sex-change process’. An SPS source is quoted as saying “She is being held at Cornton Vale because she insists she is a woman. However, she is actually still a man and it has caused quite a stir. Staff are having to refer to her as Katelyn and she is being recognised as a female”.
Colin McFarlane, then Director of Stonewall Scotland comments in The Herald, “We would expect Cornton Vale prison to act very sensitively with this issue. A person who is transsexual does not need to have any surgery to obtain a gender recognition certificate and be recognised legally in their acquired gender”. There is no indication that Kelly/Findlay has a gender recognition certificate.
Whilst held at Cornton Vale it is alleged that Kelly/Findlay has sexually assaulted another inmate in a cupboard.
In July 2014 Kelly/Findlay is convicted of further offences and returned to Cornton Vale. A prison source tells the Sunday Post that his lawyer has admitted “her last time behind bars was problematic and that was before the accusation of sexual assault.”
Criminal history
In 2013 Kelly/Findlay admitted to robbery, resisting arrest, shouting, swearing, spitting at and violently struggling with three police officers. In 2014 he was reported to have 21 convictions including dishonesty, racially aggravated harassment and sexual offences.
November 2013: Peter Laing/Paris Green convicted of torture, sexual assault and murder and sent to HMP Cornton Vale
In November 2013 Peter Laing/Paris Green is convicted of torture, sexual assault and murder. At the time of sentencing he identifies as a woman. He is given a life sentence.
With the SPS policy in the late stages of development but not yet signed off, he is sent to Cornton Vale. The murder had been committed in March and it seems likely Green was held on remand prior to the trial, but it is not clear where.
Laing/Green engages in sexual relations with female prisoners and after five weeks is transferred to Edinburgh to be ‘carefully monitored’ in Saughton’s special women’s section. In 2017 he is moved to the male wing after ‘after having sex with female inmates’.
In 2018 press reports state he is once more being held in the female wing at HMP Edinburgh and has been approved for gender reassignment surgery in England.
Criminal history
In November 2013 Peter Laing/Paris Green, Kevin McDonagh and Dean Smith were convicted of the torture, sexual assault and murder of Robert Shankland in Glenrothes in March 2013. The victim was tied up with torn bedding, battered, kicked and attacked with a rolling pin. A ligature was also tied around his neck and a plastic bag pulled over his head. The BBC reported ‘that he ‘was killed either by suffocation or blunt force injuries’ and that the men ‘then ate ham sandwiches which had been paid for after selling their victim’s mobile phone’. The sentencing judge said “This was a particularly gruesome murder which effectively involved the torture of your victim over many hours… Your conduct was utterly depraved”.
December 2013: Richard McCabe/Melissa Young charged with murder and remanded to HMP Cornton Vale
In December 2013 Richard McCabe/Melissa Young is charged with murder of Alan Williamson. Again, with the SPS policy still in development, he is remanded to Cornton Vale.
In June 2014 he attacks and bites a female prison officer in the stomach, drawing blood. An allegation that he assaulted a second female officer and bit her on the body, causing injury, is dropped by the prosecution.
McCabe/Young is convicted of murder in August 2014 and returned to the female estate to serve his sentence. His defence lawyer states that according to his client’s doctors, McCabe/Young is liable to “violent and dangerous outbursts”. He is also acknowledged to have “a severe personality disorder.”
McCabe/Young is described in the press as being 6’3″, and reported to have changed his name and undergone surgery at least a decade earlier. The former manager of a sauna where he worked tells a reporter, “She had run-ins with all the girls. They were frightened of her.”
In March 2024 the Daily Mail reports that McCabe/Young is still housed in the female estate. In early 2026 Scottish Conservative MSP Douglas Ross refers to the case in the Scottish Parliament, indicating that McCabe/Young is still being held in the female estate.
Criminal history
Young admitted to killing his neighbour Alan Williamson on Christmas Day in 2013. Young attacked his neighbour after he rejected a Christmas present of a pair of trainers and a calendar. The court heard that he stabbed his neighbour to death, inflicting 29 injuries from multiple stab wounds, using a kitchen knife with a six-inch blade. When the police arrived at Young’s flat he said “the power it gave me was amazing”. The court rejected his plea of guilty to culpable homicide by reason of abnormality of mind.
March 2014: SPS Gender Identity and Gender Reassignment policy published
In March 2014 the SPS publishes its Gender Identity and Gender Reassignment policy, marking the formal introduction of gender self-identification in the Scottish Prison estate. The policy allows males to be housed in the female estate and searched by female officers (and vice versa) subject to risk assessment.
The document front cover carries with equal weight the logos of the SPS and the STA, and a Stonewall Diversity Champion mark. Metadata for the document lists the then STA Director, James Morton, as the author.
What about the Equality Impact Assessment?
Unusually, the SPS does not publish the accompanying Equality Impact Assessment (EIA) (these documents are otherwise published on its website). Analysis of the EIA (accessed via Freedom of Information) carried out by the SPS confirms that female prisoners and officers were not considered. It also shows:
- SPS introduced the policy because it believed the ‘SPS could be at risk of corporate discrimination if they miss manage [sic] a transgender person.’
- Those involved included then STA manager James Morton, Teresa Medhurst, then governor of HMP Edinburgh and now SPS CEO, and other SPS staff, including Gordon Pike, who in 2017 was convicted of possession of over 20,000 child abuse images.
- Stonewall Scotland was consulted.
- No women’s groups were consulted.
- The SPS considered evidence produced by transactivist groups, including literature that did not pertain to prisons.
- It did not consider the 2012 Report of the Commission on Women Offenders (known as the Angiolini Report) which laid out the vulnerability of female prisoners.
- The SPS incorrectly cited ‘gender’ (instead of sex) and ‘gender identity’ (instead of gender reassignment) as protected characteristics under the Equality Act 2010.
- The SPS concluded only those with the protected characteristics of ‘age’, ‘gender identity’ and ‘sexual orientation’ would be affected, and that there would be no adverse effects on any groups.
More detailed analysis of the Equality Impact Assessment can be found here.
September 2014: Callum/Stacie McLean charged with Breach of the Peace and remanded to HMP Cornton Vale
16-year old Callum/Stacie McLean is remanded to Cornton Vale in relation to an alleged breach of the peace. McLean is placed on report and kept segregated after several female inmates report that he had threatened to rape them (McLean later denies this).
In court McLean admits to acting in a threatening or abusive manner and trying to pervert the course of justice, and is given a non-custodial sentence.
June 2015: Aiden/Sarah-Jane Riley transferred briefly to HMP Cornton Vale while serving a sentence for a stabbing
Riley had begun a sentence of 2 years 8 months for a non-fatal stabbing in Aberfeldy in 2008, while on probation for another assault. He was also subject to an Order for Lifelong Restriction. Repeated bids for release were refused. Riley committed suicide in HMP Perth in 2019, just after hearing that a further bid for release had been rejected. Due to the tragic outcome of this case there is considerable detail available about it in Fatal Accident Inquiry (FAI) report (2025).
This case is complex and difficult to summarise. We can only highlight some key aspects here.
The FAI report notes Riley was ‘an OLR [Order of Lifelong Restriction] prisoner of long standing just recalled, she had multiple personality disorder diagnoses, and she was a transgender woman’ and that the ‘case is an example of the inappropriate use of segregation for a prolonged period in circumstances where the prisoner had not acted in a manner that merited removal from association’. The impact on Riley of the prospect of indefinite detention is a strong theme in the report.
In 2015, while in HMP Perth, Riley began to identify as a woman, but had not yet begun any treatment. He was moved for short time to Cornton Vale. The FAI notes that ‘Sarah encountered many difficulties with other prisoners’ and was moved into segregation. The report adds the ‘move to the female estate had gone very badly’.
After a release on licence in July 2018, Riley was returned to Perth that November for breaching conditions. In a case conference ‘Sarah expressed some concern about moving to a female prison due to the problems she experienced when she was placed in Cornton Vale. She stated she felt safe in Perth as it was familiar, and staff knew her well’. However, one witness ‘was clear that all staff at Perth Prison the governor down wanted Sarah to be moved to another prison. She was a unique prisoner in Perth’, due to a complex combination of factors.
Riley ‘expressed strong opposition’ to a proposed move to the female wing at Polmont ‘for reasons based on her prior adverse experience in the female estate’. The report notes ‘I concluded from the evidence is that she did articulate her fears and concerns within the prison after recall, but that little weight was accorded to them. Especially as regards their relevance to the attempts to transfer her, they were ignored. The response of the responsible staff at Perth to her objection… was to decide to try again next month. No consideration seems to have been given to whether there might be good reason for her objection to transfer to Polmont’.
The report noted that the ‘equality and diversity role within SPS…took a quite prescriptive approach at the first TSG [transgender] case conference and stated that Sarah had to go to the female estate because the policy said that she should. [He] held a very rigid view of the SPS’s responsibilities under the Equality Act 2010 Act. He does not appear to have considered whether the policy should be departed from in this very unusual case where there was a previous history of Sarah living in the hall at Perth as a woman’.
The report also records a prison-based social worker ‘thought that the best thing would be for Sarah to stay in Perth. She was close to family, had links in the community and was known to the local social workers. No one higher in the prison hierarchy seems to have been aware of her view. The only course pursued was to seek a transfer’. Equally however, the FAI accepted that Riley was a more complex case than a local prison such as HMP Perth was used to accommodating, and that this was a relevant consideration.
Unknown date in 2016: ‘Risk Assessment for Transgender People in Custody’ form introduced
With the policy already in place for around two years, at some point in 2016 the SPS introduce a ‘Risk Assessment for Transgender People in Custody’ form. This is intended for situations where ‘decisions on accommodation & searching differ from the declared social gender of the individual.’
A later ‘Action‘ notice, issued by the SPS in December 2019, reveals that the form was introduced in response to a prisoner complaint to the Scottish Public Services Ombudsman. See here for further details and analysis by Dr Alessandra Asteriti:
Unknown date in 2016: Convicted murderer Alan Baker/Alex Stewart transferred to female section of HMP Greenock.
At some point in 2016 convicted murderer Alan Baker/Alex Stewart is transferred to the female estate at Greenock.
Alan Baker had been reported at his trial in 2013 to be pursuing a ‘sex-change’ at the time of committing murder, but been tried as Alan and held in in a male prison. At some point, he begins to identify as Alex Stewart and is provided with a bra and make-up, which he is permitted to wear in his cell.
In February 2018 he is reported to cause upset by winning the prison’s ‘Miss Fitness’ competition, for which he receives various sought-after prison commodities as a prize. In the same year he begins a relationship with fellow inmate Daniel/Sophie Eastwood (see below). Stewart and Eastwood are ‘openly intimate’ in front of female inmates, after which Eastwood is transferred to the female section at Polmont. Stewart remains at Greenock.
In 2019 his request for cosmetic surgery (adam’s apple reduction) is approved.
In 2020, Baker/Stewart is reported to be in a relationship with Nyomi Fee, who had been convicted of the murder of her 2-year old son in 2016. In 2023, supported by Fee, he makes allegations of transphobia against Janey Sutherley, also serving a sentence for murder. Sutherley is prosecuted for transphobic harassment and loses a parole opportunity as a result. In court it is alleged that the Baker/Stewart and Fee enjoy inappropriate amounts of private access: ‘the pair had been allowed to shower together and that a blind eye was turned to sexual behaviour’. In 2025, the court clears Sutherley of the charges made against her.
Baker/Stewart is understood to remain at Greenock.
Criminal history
Baker/Stewart was convicted of muder in 2013 and sentenced to life imprisonment. The court heard that he stabbed John Weir, who he had met online, at least sixteen times. The judge Lord Boyd told Baker he was guilty of a “wicked and brutal” attack. He grinned as he was led out of the court. The campaign group Keep Prisons Single Sex state the court was told he had a history of violence against his male partners.
Unknown date in 2016: Sex offender Harryetta Thompson convicted and sent to HMP Cornton Vale
In 2016 Harryetta Thompson is convicted at Stranraer Sheriff Court of grooming two children. He appears to be housed in Cornton Vale from the start of his sentence.
Thompson’s placement in the female estate in Scotland is first reported in 2023, after his history of sexual offending comes to light among prisoners, causing him to be subject to threats. In response, the SPS segregates him. A prison source is reported as saying “Thompson is a disturbed individual and very volatile but prisoners have accepted her up to this week. She was overheard on the phone, making clear that her history includes sex crime involving children – and that’s a game changer. But it’s ludicrous that this person, with full male parts, is being held in a women’s prison”. His mother tells the Daily Record that the the current set-up in Scotland “means there is no facility that is suitable for volatile trans prisoners like her daughter”.
It is not clear what happened in this case after that.
Criminal history
Thompson had a history of indecent exposure, prior to this conviction. His solicitor argued that this could be due to discrimination and harassment, within a small community.
Unknown date in 2017: Shantelle Taylor charged with threatening and abusive behaviour and remanded to HMP Cornton Vale
In August 2017 the Mirror report that Shantelle Taylor had been placed on remand on Cornton Vale, accused of threatening and abusive behaviour during a brawl at a homeless hostel in Glasgow. Taylor later complains that he was not permitted to enter the cells of other female prisoners. It appears he received a non-custodial sentence.
In May 2018 he breaches his bail conditions and is recalled to Cornton Vale.
Unknown date in 2018: Convicted murderer Daniel/Sophie Eastwood transferred to the female estate
At some point in 2018 convicted murderer Daniel/Sophie Eastwood is transferred to the female estate.
Whilst previously held in the male estate in 2016 Eastwood terrorised a female officer, who left her job as a result. A later Daily Record article states Eastwood realised at a psychologist session in 2016 that he ‘was not a gay man but identified instead as a woman.’
In February 2018 the Sunday Post report that Eastwood has begun to identify as a woman called ‘Sophie’. The article states he is ‘known for having a hair-trigger temper’, has attacked guards, and has been repeatedly hospitalised for eating razor blades.
At some point thereafter he is transfered to the female estate. In May 2018 he is reported to be in a relationship with male murderer Alan Baker/Alex Stewart in the female estate at HMP Greenock. Eastwood is also held with women at Polmont and Cornton Vale.
In 2021, Eastwood tells a journalist that he has only been kept in prison beyond the period of his minimum term because he identifies as a woman. In 2022, there is a further report of Eastwood seeking to be treated as an infant.
In 2023, in the wake of the Bryson scandal, he is reportedly moved from Cornton Vale to a men’s prison. In January 2026 it is reported that Eastwood has been held under guard in hospital since August 2024, after swallowing razor blades.
Criminal history
Daniel Eastwood was convicted of murder in 2004, having strangled his cell mate with a shoelace whilst held in the male estate after a conviction for dangerous driving. He was reportedly given the nickname ‘Hannibal Lecter‘ due to his ‘ultra violent temperament and love of sinister mind games’.
February 2018: Scottish Trans defend policy
As part of the 2018 Sunday Post news coverage on Daniel Eastwood, STA manager James Morton writes a piece in defence of the SPS policy. Morton acknowledges that the SPS placed men in the women’s estate since at least 2010, several years ahead of the 2014 policy and most likely in breach of the the Prison Rules at that time.
‘For over a decade, the Scottish Trans Alliance has been working closely with the Scottish Prison Service and Violence Against Women organisations to ensure progress on transgender equality is never at the expense of women’s safety.
One of our Scottish Trans Alliance staff has more than 20 years’ experience as a prison officer so we’re not naive about the complexities involved in managing trans people in custody.
Comprehensive individualised risk assessment rightly forms the core of Scottish Prison Service decision-making about transgender prisoners.
Transitioning in custody is a very slow process where even a request for different clothes requires a risk assessment and case conference.
Searching and housing decisions are made extremely carefully and the safety of all prisoners and staff is the highest priority.
Searches are a stressful part of a prison officer’s job but staff are never on their own and have the power to place the prisoner on report for any inappropriate behaviour.
Most trans women in custody are safely held in single cells in the female estate, where they are closely monitored and shower separately.
However, if necessary to manage risk, a trans woman could be held in the male estate even if she has received legal gender recognition.
Since 2010, the majority of trans women in Scottish Prison Service custody have been held in the female estate and none have harmed female prisoners.’
Comment
Data subsequently made available, and press reports, suggest that the factual statements in this piece about the housing and treatment of these cases should be treated cautiously.
For example, in contrast to the claim that ‘most’ males identifying as women have been held with women, the Scottish Government’s Note of Argument, quoted above, states ‘Only a minority of transgender prisoners have been held in prisons of the opposite sex’. This is consistent with data released by the SPS in 2020 showed that more than half of the prisoners it described as ‘trans women’ were held in the male estate; and in 2022 the group was evenly split across men’s and women’s prisons; in some cases this was because these prisoners had not asked for a transfer out of the male estate. See further here:
December 2018 onward: Assorted policy review statements
In December 2018 online news organisation The Ferret reports that the SPS plan to review its policy. By this stage, public awareness is growing that the SPS has adopted a policy with a default assumption that prisoners will be housed according to their self-declared gender identity rather than their sex, leading to concerns being raised in the media. However, the main driver of the review at this stage appears to be the management of non-binary prisoners.
This blog traces policy review developments between December 2018 and December 2020, during which the SPS and Ministers made a series of muddled statements on the status of a SPS policy review:
17 December 2019: Scottish Public Services Ombudsman (SPSO) recommend review of complaints handling policy
An Action Notice from the Divisional Head of Operational Delivery to all Prison Govenors states that the SPS Chief Executive has accepted a recommendation from the SPSO to review its complaints policy. The decision relates to a complaint made in 2016 that the SPS had failed to evidence decision-making in relation to its transgender prisoner policy (see above: ‘Risk Assessment for Transgender People in Custody’ form introduced).
The notice states the ‘SPS has committed to review the overall transgender policy’. It also suggests the risk assessment form issued in 2016 [for accomodation and searching] is still not being used consistently.
November 2020: Study of transgender prisoners views
In late 2020 the Prison Service Journal publish a research paper by former SPS staff member Dr Matt Maycock, providing insight into trans identified prisoners’ perspectives. The paper uncritically refers to trans-identified prisoners being unusual in wanting to be ‘searched more’ (by officers of the opposite sex), and to share cells and take showers with other (opposite sex) prisoners.
‘Something that emerges as a particularly unique finding in this study is the desire of transgender people in custody to be treated in the same manner of people of the same gender as them. This resulted in a number of participants wanting to be searched more, to share a cell and shower at the same time as other people in custody, something that is in contrast to what would be seen as undesirable to their fellow people in custody. This search for standardised treatment in relation to gender within custody is something that both the transgender men and women in this study strived for.’
21 December 2021: Policy review update
In December 2021 SPS Chief Executive Teresa Medhust writes to the Cabinet Secretary for Justice advising that preliminary work on the policy review is near completion and that the SPS intended to move onto the engagement phase shortly.
February 2022: SPS public consultation
The SPS opens its consultation to the public in late February 2022. Drawing a line under the assorted policy review statements, the SPS confirm that ‘the current policy review process, which commenced Spring 2021, supersedes any work undertaken on this policy previously’. Aside from invited stakeholder organisations and interest groups, the public consultation attracts just three responses (see page 17).
More details, including our concerns about the proposed methodology and correspondence with the SPS are here. A copy of the survey instrument given to prisoners is here.
March 2022: Alan/Alannah Morgan arrested for violent offences and remanded to HMP Cornton Vale
Alan/Alannah Morgan is arrested in March 2022 after behaving violently outside a hostel in Dundee, throwing a skateboard, and shouting and swearing at staff. In the police van, he continues to behave violently and exposes his genitals and buttocks. This is later argued by Morgan’s solicitor as ‘not a sexual act’ but ‘a demonstration’ during an argument over gender. His solicitor states that Morgan had ‘lost the plot’ and got ‘into a frenzy’.
Morgan is held on remand at Cornton Vale, reportedly in segregation, prior to appearing in court in relation to this and other similar offences. He is listed as male for two charges, and as female for a further two charges. He is given a non-custodial sentence.
September 2024: SNP MSP Chris Law fears for safety
In September 2024, Morgan is found guilty of causing SNP MSP Chris Law fear and alarm by hurling threats and abuse at him outside his parliamentary office. Mr Law told the court that he feared for his safety. Staff described Mr Law as being ‘panicked and distressed’.
The press reports that ‘The trial had to be halted when the transgender accused became annoyed by witnesses calling her a man.’ He also admits maliciously spray painting two businesses with the name of a band and a swastika, which the court heard was the logo of the band. On this occasion, he does not appear to have been held on remand and is given a non-custodial sentence.
October 2022: Convicted sex offender Lennon/Katie Dowlatoski sent to HMP Cornton Vale for breaches of conditions
In October 2022 convicted sex offender Lennon/Katie Dowlatowksi is sentenced to four months’ custody for breaching the terms of an order restricting his movements. He is sent to Cornton Vale. This appears to be the first time Dolatowski is placed in the female prison estate, although he had previously been briefly placed in a hostel for female offenders (see below). He is released at the end of December.
While at Cornton Vale, in November 2022 he pleads guilty at Falkirk sheriff court to an assault committed in January 2021 while held for a short while in the male estate at Polmont (see below). Witnesses state they saw Dolatowski ‘holding Mr Patterson over a table and punching him to the back of his head’. Sentencing was deferred to January. He is not placed on remand.
After a complex series of further hearings, failures to appear and further conditions being placed on him, he is last reported in April 2023 to have been sentenced to a further short sentence, served in the male estate, at Low Moss.
Criminal history
In January 2019, Lennon/Katie Dowlatowski was convicted of voyeurism and sexual assault, after attacking a ten-year-old girl in supermarket ladies toilets in Kirkcaldy, and targeting another girl at a supermarket in Dunfermline. At this point, he was already using the name Katie. He had a complex history of further offending, involving assault inside and outside prison, and repeated breach of conditions of community sentencing.
After conviction for the sex offences he received a community sentence and was placed on the sex offenders register, after being deemed to pose a moderate risk of reoffending. After sentencing, Dolawtowki, who is 6’5″, was placed in a hostel for vulnerable female offenders in Dunfermline, and then shortly after moved to separate accommodation, after this came to light in the press. Scottish Trans Alliance was contacted by a Courier reporter for comment but did not respond.
In March 2019 he appeared again in court, having breached the terms of his community sentence, and appears to have been given a further non-custodial sentence. In late 2020 he was convicted of an assault in Glasgow and placed in the male wing of Polmont, where he assaulted another prisoner in January 2021. He was charged again with assault, and (it appears) bailed. This case came to court in November 2022.
In the summer of 2022, he spent 71 days in a Leeds Domestic Violence Service hostel using a new name and documents. He has reportedly also used the name Alyanna McKenna. He returned to Fife sometime before mid-October.
On 18 October 2022, he was reported to be in court for breach of address notification conditions imposed by the sex offenders register, and made subject to further conditions at this hearing. He returned to court almost immediately, for a further breach of conditions, which his lawyer argued were as a result of trying avoid local hostility when it became known he had moved in with his mother. This is when he is sent to Cornton Vale.
Unknown date in December 2022/January 2023: SPS give permission for convicted violent offender and stalker Andrew Burns/Tiffany Scott to transfer to the female estate
On 28 January the Daily Record report that the SPS has ‘relented in recent weeks’ and approved the transfer of violent offender Burns/Scott to the female estate. He is regarded as one of Scotland’s most dangerous prisoners. Burns/Scott had begun to identify as a woman whilst in custody, it appears around 2016.
Permission revoked
Against the backdrop of the Graham/Bryson controversy and intense political pressure, on 29 January the Justice Secretary announces that all transfers to the female estate will be ‘paused’ for prisoners with a history of violence. Burns/Scott died in custody in February 2024, reportedly from a drug overdose and abdominal injuries. A SPS spokesperson said that a Fatal Accident Inquiry would be held in due course.
Criminal history
Burns/Scott has been described as ‘one of the most menacing people’ in the Scottish prison estate and was subject to an Order for Lifelong Restriction. He assaulted a nurse while escaping from a hospital in Cheshire in 2010. In 2013 he was sentenced to 14 months for stalking a 13-year-old girl from Polmont Prison, Falkirk, by sending letters. The BBC reported that in 2017 Falkirk Sheriff Court was locked down for safety reasons whilst Burns/Scott was sentenced for a series of violent incidents in Glenochil Prison. These included ‘striking a prison nurse on her back with a hurled chair, punching a prison officer in the face, and spitting at another officer and trying to bite him’. He also smeared excrement over his cell, tore a drip needle out of his arm, and ripped up ‘tear-proof’ clothing.
24 January 2023: convicted rapist Adam Graham/Isla Bryson sent to HMP Cornton Vale to await sentencing
In January 2023 Adam Graham/Isla Bryson is found guilty of two counts of rape. Following conviction, he is remanded in custody in segregation at Cornton Vale to await sentencing. Media reports indicate the SPS had overruled an initial decision by the court service to take Bryson to HMP Barlinnie, a male prison. He is moved to the male estate the following day.
Bryson was charged in 2019 but not held on remand. He later began to identify as a woman. In 2021, using a different female name, Bryson enrolled on a college beautician course where most other participants were young women, some of whom later expressed distress at having been required to undertake activities with him that involved undressing. He was refused enrolment on a self-defence course for women.
29 January 2023: Interim SPS measures announced
In response to the unfolding controversy around the Graham/Bryson case, on 29 January 2023 the Justice Minister announces interim measures that will be followed until the SPS review concludes (see Andrew Burns/Tiffany Scott above).
The Justice Minister confirms the default position that no newly convicted transgender prisoner with a history of violence against women will be accommodated in a women’s prison, or such prisoners moved from the male to the female estate. Offenders with a history of violence against women may, however, be placed in the female estate in ‘exceptional circumstances’ with Ministerial approval.
‘I can confirm that the following will apply (unless there are exceptional circumstances, in which case the approval of Ministers will be required):
- No transgender person already in custody with any history of violence against women will be moved from the male to the female estate.
- No newly convicted or remanded transgender prisoner with any history of violence against women will be placed in the female estate. Violence against women includes sexual offences against women.’
Comment
The reliance on criminal histories as an indicator of risk of similar behaviour in custody fails to account for the fact that most violent or sexual offending by men goes unreported, and that only a low proportion of reported cases end in successful prosecution. Equally seriously, it fails to consider factors other than the risk of a sexual or physical assault, overlooking the impact of the presence of a male prisoner on female prisoners’ psychological safety, let alone their privacy and dignity. Our response at the time is shown here:
31 January 2023: Bryson/Graham SPS urgent case review update
An urgent case review takes place into the Bryson/Graham case (as documented in correspondence from SPS Chief Executive to the Justice Minister dated 8 February):
‘A case review discussion took place on Tuesday 31 January with senior SPS officials involved in the management of the individual. The aim of this review discussion was to systematically and rigorously assess all facts and evidence informing the decision making process. Independent oversight of the case review was conducted by the Interim Deputy Chief Executive (DCE) of SPS and then ultimately myself as Chief Executive of SPS. A final report was submitted to me on Friday 3 February.’
4 February 2023: Prison Officers Association express concern
Prison Officers Association (POA) spokesman (Phil Fairlie) tells the Daily Record he is concerned that female staff feel pressurised to carry out intimate searches on a violent male prisoner. He states: “I will be taking this up with management at the prison”.
8 February 2023: Andrew Miller/Amy George arrested for sex offences and remanded to male estate
Andrew Miller, known also as Amy George, is arrested and charged with abduction and threatening and abusive behaviour. He is later charged with sexual assault of a young child, sexual exposure, causing a young child to look at a sexual image and possession of indecent images of children.
In court the judge treats Miller/George being dressed as a woman as an aggravating factor. He argues it was unlikely that the girl would have accepted a lift if Miller/George had presented as a man and therefore regards his appearance at the time as part of a pre-meditated strategy. On appeal, Lord Carloway however treats this as an error, on the grounds that he normally dressed this way (but does not reduce the sentence).
After arrest and pleading guilty, Miller/George is held on remand in the male estate. When asked by journalists, First Minister Humza Yousaf states he cannot say whether he will be moved to a women’s prison after sentencing.
Miller/George is housed after sentence in the male estate. It is not known if he is permitted to socialise with women in the female estate, as the policy allows, although reporting suggests that he has abandoned the Amy George identity while in custody.
Miller/George is included here, because he is unusual in having a well-established, apparently heavily-used cross-sex identity prior to arrest, but choosing to abandon that on contact with the criminal justice system. A report in The Times states ‘after his arrest Miller told police he was transitioning to a woman but wanted to be referred to by his male identity and use male pronouns.’ A report in the Telegraph noted ‘locals said [Miller] had presented themselves as female for several years’. When Miller unsuccessfully appealed his sentence in 2024, his lawyer stated that Miller had a transgender identity and had lived and presented as a woman for six years prior to his offending, and that this should have been considered when passing sentence.
This case therefore challenges the assumption that having a long-time established public female persona prior to entering prison necessarily predicts a need to continue with this in prison. The high-profile reaction to Bryson immediately prior to Miller/George’s arrest meant that his was the first such case where it was near-certain from arrest onwards that any sentence would be served in the male estate.
8 February 2023: Urgent SPS case review recommendations
SPS Chief Executive Teresa Medhurst submits key recommendations from the Bryson/Graham Urgent Case Review to the Justice Minister. She assures the Minister that ‘at no time during this period were any women in SPS care at risk of harm as a consequence of the management of the individual’ and ‘SPS policy was followed during each decision making process and risk assessment’.
The report states that there was ‘limited’ information’ beyond the two convictions for rape, to inform the initial assessment when placing Bryson.
As per the Justice Secretary’s recent statement, accompanying correspondence states that a male prisoner with a history of violence against women could still be moved into women’s estate under ‘exceptional circumstances’, subject to Ministerial approval.
‘If there are exceptional circumstances which support a recommendation that a transgender individual with any history of violence against women be relocated to, or placed in, any part of the prison estate which does not match their birth gender, then I will seek Ministerial approval to do so on a case-by-case basis.’
See further here:
22 February 2023: Criminal Justice Committee evidence
Justice Secretary Keith Brown, SPS Chief Executive Teresa Medhurst, Neil Rennick, Scottish Government Justice Director, and other government officials give evidence to the Scottish Parliament’s Criminal Justice Committee.
At the session, the Minster and officials defend the policy. The Justice Secretary states he has ‘faith’ in SPS policy but was unaware of the Bryson/Graham case until reported in the media. When asked if she felt it was “appropriate” to house a rapist in the women’s estate, Ms Medhurst stated, “It’s not a simple process and at the point of time where someone is making a decision on the location of an individual, they will have extremely limited information and make the best decision at that time, given both the circumstances and our policy position.” Ms Medhurst also said none of the five trans women prisoners currently in the female estate had “live convictions of violence against women”.
Our briefing note prepared for Committee members is below.
Further Prison Officers Association pushback
September 2023
Ahead of the revised policy, a POA circular (no longer publicly online) states the POA has taken legal advice on its concerns about searching and has refused to sign off a position with the SPS, but since secured ‘necessary protections’ for members.
October 2023
An update on the SPS gender policy review is made at the POA Scotland Conference. In a short speech the POA Scottish National Committee Vice-chair confirm “our position is, and legal opinion, we will not allow our female officers to be forced to search biologically-born men”.3
29 November 2023
Minutes from the POA Scottish Committee confirm that the POA cannot support the proposed policy.
5 December 2023: Revised SPS policy statement published
On 5 December 2023 the SPS publishes its updated policy and accompanying EHRIA. The policy is due to come into full force on 26 February 2024.
The policy allows for men without a recorded history of violence against women to be housed in the female estate. It relaxes the rule put in place by the interim guidance, which required Ministerial approval to place a man with a history of violence against women in the female estate. Instead, prisoners that do not present an ‘unacceptable’ level of risk may be approvied internally.
‘A transgender woman who meets [the Violence Against Women] criteria will not be transferred to a women’s prison unless the Risk Management Team, and subsequently the Executive Panel, are satisfied there is compelling evidence that they do not present an unacceptable risk of harm to those in the women’s prison.’ (emphasis added)
Other documents published include:
- Policy summary: SPS Policy for the Management of Transgender People
- Executive Summary of SPS Policy Review 2021 – 2023
- Statement by SPS Chief Executive Teresa Medhurst
- Equality and Human Rights Impact Assessment
- Child Rights and Wellbeing Impact Assessment
- Data Protection Impact Assessment
Equality and Human Rights Impact Assessment
In our view the EHRIA does not meet the standard expected of a large public body. Women are relegated to a subset of their own sex-class and described as ‘non-transgender women’ (page 12). That transwomen are male is framed as ‘a perception’ (page 20).
The presentation of consultation results is incomplete. The review of international human rights obligations and wider research is also incomplete and unbalanced. The UN Rules for the Treatment of Women Prisoners and Non-Custodial Measure for Women Offenders (Bangkok Rules) are not referenced. Neither CEDAW nor the Istanbul Convention are referenced. Nor is the Angiolini report on women offenders, the SPS New model of custody for women, Strategy for women in custody 2021-25, or any other literature on the needs of female prisoners referenced.
The EHRIA does not identify any potential for unlawful discrimination, adverse impacts, or breaches of human rights articles, a conclusion that requires placing less weight on the rights and needs of women. The SPS further claims that the revised policy, which allows for violent men to be housed with women, ‘advances equality and human rights as well as fosters good relations’ (page 43). This suggests the SPS does not understand the conflict of rights underpinning its own policy. A detailed analysis of the EHRIA is here:
5 December 2023: Changing the Prison Rules (again)
On the same day as the revised policy statement, the government lays the Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2023 SSI before Parliament. The proposed amendment seeks to give prison governors discretion to override the provision requiring searching on the basis of gender. The policy note explains:
‘The Amendment Rules will make changes to Rule 92 (Searching of Prisoners). This Rule currently requires prisoners to be searched by an Officer who is the same gender as them. While this may be overridden by a Governor where there are concerns about the searching Officer’s safety or, in the case of a transgender prisoner, that they would prefer to be searched in accordance with their birth sex, the Rules do not currently expressly provide for that.’
For further details see here:
11 January 2024: SPS and government evidence to the Criminal Justice Committee
In January 2024 the Criminal Justice Committee takes evidence from Justice Secretary Angela Constance and SPS Chief Executive Teresa Medhurst on the revised policy and proposed amendments to the Prison Rules.
At the session Ms Medhurst states it is “highly unlikely” that a violent trans identified man would be housed in the female estate, but does not categorically rule this out. When asked if female officers could opt out from searching men she advises that managers would listen to prison officers concerns about searching males.
18 February 2024: Research by former SPS researcher disclosed
The Sunday Post report that it has obtained a copy of an unpublished report that showed that ‘Female prisoners say they feel intimidated by the presence of transgender prisoners and live in fear of being attacked.’
Although not diclosed in the article, we understand the report was authored by former SPS staff member Dr Matthew Maycock (see above) and also published as an academic paper. Whilst supportive of gender self-declaration in the prison service, the paper nonetheless provides interview evidence showing the discomfort and fear felt by some female prisoners at the presence of men in the women’s estate, as well as scepticism. Quotes from female prisoners include those shown below.
Risk
“I’m not saying I’m a prude, but this person sat down, within the first five minutes of meeting him, “oh aye, that 50 Shades of Grey, that’s too timid, that’s too mild for me.” This is a big heavy man… he’s a big intimidating man.
“She’s still a guy. I don’t know if I’m…am I allowed to say all that, right? Still a guy or whatever and I think a lot the girls has…well, a few of the girls within the hall had been subject to abuse as a child so they still saw this guy figure.”
“If I was to have an argument with them [transgender women]. Then you would feel at, kind of, risk then. Because that’s the strength of a man. Well if it got into a heated argument and into a fight you would be wanting to stop a guy hitting you. I’ve been hurt by a guy before. I just wouldn’t like to get hurt… Well, it’s just like a man the now, it’s still a man with force.”
Concern at retained sexual function
“She’s [transgender woman] been caught having sex and stuff in here, and I think that’s wrong. Well, supposedly, she had stopped taking her medication for a bit and, supposedly, something had happened.”
“If they’re maybe going through the change and they’re on the hormones and that, but, like, she’s still got a fucking willy and all that, do you know what I mean.”
“A lot of people maybe just don’t like it, it makes them uncomfortable. But I think that’s to do with…because it’s not the full change.”
Scepticism
“I feel like it was a bit of an act. Because she had a beard and she didn’t try. She basically had a short back and sides and it was just…she just looked awful. And she didn’t try cover up her…obviously her down belows or anything like that.”
“She was never female before until she hit [name of prison] and then decided that she wanted to be a woman because she couldn’t handle it. I think she puts a lot of it on.”
“And I feel like that transgender, that’s just an act to get in to a females’ jail because awful. And this transgender had been telling the paedophiles, how to get over to female jail, over to the female side.”
“The last one to get out, back living as a man. The one before that got out, back living as a man, while he was in the hall, was telling people, I’m stopping taking my medication because I can’t get a hard on. I’ve not a problem living with trans people, it’s living with people who are manipulating the system and pretending to be trans.”
In an earlier press article (2020) the SPS told The Scotsman that Dr Maycock’s work had not influenced its review.
22 February 2024: Scottish Trans defence of policy
The Times publish an article by Scottish Trans manager Vic Valentine defending the revised SPS policy. The article’s full text is here, with our commentary below:
‘When it comes to taking decisions on where to house trans people in prison, the most important thing is that the safety and human rights of everyone are taken into consideration. Just like within every community, some trans people will commit crimes.
While the cases in the media almost exclusively highlight people who have committed appalling sexual or violent crimes, that is of course not always the case. A trans person could be in prison for drug possession or insurance fraud.
Historically, most trans people were held on the estate that matched their sex recorded at birth, regardless of their individual circumstances. This often meant trans people were kept in segregation for the majority, or all, of their time in custody. Why? Because they faced discrimination, abuse and sexual violence in the general prison population or had serious mental health crises.
‘This approach meant trans people were in danger, isolated and distressed. Because of this a policy of holding all trans people in prisons that match their sex recorded at birth is not compliant with human rights standards. It is not an approach that the Scottish Prison Service (SPS) should, or can, take.
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 again in 2022, when asked for our views by the SPS, we said that there should be a risk assessment in the case of each trans person.
That 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. It should consider risks to the trans person, as well as risks to others. It is 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.
Where a risk assessment finds no genuine reason to decide otherwise, a trans person should be housed in the estate that corresponds with their identity. This may not mean a trans person being treated exactly the same as everyone else. When it comes to showering or sharing cells, it may be necessary to treat trans people differently, to increase privacy for all.
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 that does not work, and that has appalling consequences. The only approach that can be taken is one that looks at each trans person as an individual, focuses on the facts, and places the safety and human rights of everyone at its heart.’
Comment
When Scottish Trans state ‘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’ it is unclear whether they mean all violent sexual offenders and others who pose a risk to women, or only violent sexual offenders who are also deemed to pose a threat to women.
In any case, like the policy, the Scottish Trans position relies on the limited information available from convictions as evidence of past offending behaviour. Notwithstanding this point, there are several current examples of very violent men housed in Scotland’s female estate, one of whom (Young) is known to have been violent towards women, and some in the past (and possibly still, if Thompson is still in custody and in the female estate) who have committed sexual offences involving children. All have been placed there under policies approved by Scottish Trans, and a case review system which originally granted the Scottish Trans a role.
The comment that the media highlights cases involving ‘appalling sexual or violent crimes’ but not crimes such as drug possession or insurance fraud is surprising. Violent and sexual offenders make up by far the largest share of the male prison population generally (violence is also the largest category for the female one, but sexual offending is negligible). It is true that even so, murder accounts for a minority of cases. But Scottish Trans would be expected to know from its working contact with the SPS that murderers make up a disproportionate number of the male prisoners moved into women’s prisons under the policy: at one point it was calculated that 4 out of 5 such cases were murderers, three of whom are still in the Scottish female estate. It is therefore impossible to discuss the practical effect of the policy without putting a focus on such cases.
In England and Wales, where some men are also still held in women’s prisons, although much more exceptionally than in Scotland, there is a disproportionate prevalence of serious violent or sexual offending among the male offenders recorded as being transgender. No equivalent data is available for Scotland. Scottish Trans does not appear to have encouraged the collection and publication of such data.
The article’s central argument is that without a policy of transfer, segregation in the male estate will ‘often’ be the only other option. As the cases above show, prisoners who have been transferred can also find themselves in segregation. In any case, prior to revision of the policy, the data showed that often half or more of male transgender prisoners were held according to their sex, and we understand that that percentage may since have increased. So the prison service already needs to cater humanely for that non-transferred population. It is not clear how splitting it up more, as the policy does, assists with that.
For further details on prisoner numbers prior to December 2023 see here:
26 February 2024: SPS publish full operational guidance
In February 2024 the SPS publishes its full operational guidance. As suggested in the EHRIA (see page 15), the guidance confirms that prisoners who are not deemed suitable for transfer to the female estate may be allowed access to activities and programmes with women.
‘The [Transgender Case Conference] should consider and discuss progression and opportunities to participate in activities and programmes taking place in the estate of the individual’s affirmed gender even if they are not housed in that same estate. Discussions should include the necessity of attending the proposed activities or programmes, initial consideration of risk as well as logistic considerations including those related to transport and regime.’ (page 36)
Around this time the SPS publish the evidence paper supporting its policy review, including the full results from its prisoner survey. The paper concludes that the SPS ‘would not be able to adequately consider and manage risk, including VAWG’ if it were to adopt a blanket approach based on sex, gender identity, or transgender status.
16 April 2025: UK Supreme Court judgement in For Women Scotland Ltd v The Scottish Ministers
In For Women Scotland Ltd v The Scottish Ministers the UK Supreme Court confirm that ‘sex’ in the Equality Act 2010 refers to biological sex.
27 May 2025: Responsibility for SPS policy
On 25 April, following the judgment in the UK Supreme Court in the case of For Women Scotland vs the Scottish Ministers, we wrote to Angela Constance, Cabinet Secretary for Justice, asking the Scottish Government to withdraw the Scottish Prison Service (SPS) policy.
On 27 May the Cabinet Secretary indicates that responsibility lies with the SPS (emphasis added):
‘As a public body, SPS is required to comply with the Equality Act 2010 and other relevant legislation and like all public bodies is currently considering the outcome of the Supreme Court judgement and the Equality and Human Rights Commission (EHRC) interim update published on 25 April.
Issues relating to the management of individuals in prison are for the Chief Executive of the Scottish Prison Service (SPS) who is operationally responsible for matters such as the location, movement, discipline, care, welfare and interventions for all prisoners.’
As explained below, this is an incomplete account. As a matter of law, legal liability for the policies and action of the Scottish Prison Service rests with Ministers. See further here:
16 August 2025: For Women Scotland lodge court summons to quash the SPS policy
On 16 August 2025 For Women Scotland lodge an action at the Court of Session. They argue that the SPS policy, as well as Scottish Government guidance for transgender pupils in schools, are in breach of the Supreme Court judgement in April, which established that ‘sex’ in the Equality Act 2010 refers to biological sex.
On 5 November 2025 it is agreed the prisons case should proceed as a judicial review. On 8 January 2026 a three day hearing is set for 3 February 2026.
A detailed account of these developments and the For Women Scotland note of argument (published on 17 January 2026) are available here.
18 December 2025: Scottish Human Rights Commission announces permission to intervene in the judicial review
In December 2025 the Scottish Human Rights Commission (SHRC) announces that it has permission to intervene in the forthcoming judicial review. The SHRC state that its ‘intervention is not to support or oppose the arguments of either party’.
The SHRC has a record of advocating for gender self-declaration policies and law. It previously submitted a response to the SPS policy review consultation that lent support to the placement of prisoners based on self-declared gender identity. More details are here:
18 January 2026: No women’s prisons in Scotland
Ahead of the judicial review bought by For Women Scotland, Rhona Hotchkiss, a former governor of now-closed Cornton Vale, says that as a result of SPS policy, there are no longer any women’s prisons in Scotland.
20 January 2026: Scottish Government publishes its note of argument
In January 2026 the Scottish Government publishes its note of argument in the forthcoming judicial review.
As part of defending its position, the Scottish Government draws an analogy between a mother taking a young boy into a public toilet and the presence of a transgender adult male (in this example Christine Goodwin).
‘The presence of a young boy does not challenge the dignity of a woman in a changing room in the way that the presence of an adult male would – and the same may be said of the presence of persons in the position of Christine Goodwin relative to a non-transgender adult male.’
The Scottish Government states that to ‘segregate‘ trans identified prisoners by biological sex ‘would be to place them in an intermediate zone of neither one sex nor the other’. The government also asserts that the ‘placement of those prisoners has not given rise to any significant operational issue in the prisons in which they have been detained’.
This is not supported by the cases detailed above, which include male prisoners with a history of assaults on prison officers and prisoners, engaging in sexual relations with other prisoners, and in at least one case, seeking the prosecution of woman prisoner for ‘misgendering’.
Notes
- Scottish Trans told the Criminal Justice Committee: ‘We are also experts in trans equality and human rights, having been funded since 2007 by the Scottish Government as a specific trans equality project, with a key function of our organisation being to provide best practice guidance and advice to public bodies and service providers on these issues’.
See: Scottish Trans Alliance, evidence to the Criminal Justice Committee, Management of transgender prisoners, 11 January 2024 page 37. ↩︎ - The 2006 Rules stated: ‘Female prisoners shall be accommodated in rooms or cells which are entirely separate from rooms or cells used for the accommodation of male prisoners.'(rule 133) ↩︎
- The full update from the POA Scottish National Committee Vice-chair is as follows (emphasis added):
“So, this gender/transgender policy, for years we’ve managed transgender prisoners, 10/14 years and more. It was always done on a volunteers’ basis with our female officers if they volunteered, went along and searched transgender prisoners. Then one group of managers decided that they would try and force the female officers in that establishment that they would, ‘You will, I’m gonna order you’, came through ‘cause that’s kind of been the way for 20-odd years, however, that’s what was happening. When this was raised it gave serious concerns for the safety of our female officers. Scottish Prison Service and the trade union side met to discuss a policy, attempted to develop one and they actually put some good ideas forward and one of the ideas was everything should be based on risk, risk should be the first thing, no individual’s rights or what they want to be recognised as, but the risks. The major risk for us was any person coming to prison who wants to be recognised through the transgender, if they had committed crimes against females then they’re a risk to their female officers. We could never get an agreement because it always seemed to hinge on search. So, we sought legal opinion and the lawyers came back and unless a prisoner has a Gender Recognition Certificate then they believe it is illegal for our female officers to search biologically-born men. And if yous know, there’s one case ongoing where a female officer, who again, was ordered by a manager to search a biologically-born man and she’s now taking action against him. So, our position is, and legal opinion, we will not allow our female officers to be forced to search biologically-born men. That’s the update.” ↩︎