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.
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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.
Vic Valentine is manager of Scottish Trans Alliance
