Why it's wrong for all trans prisoners to serve their sentence according to their sex at birth – Vic Valentine
Trans women in male prisons tend to be held in isolation for their own safety but this can have devastating effects on their mental health
Last Friday, the Court of Session ruled that the Scottish Prison Service’s (SPS) approach to housing trans prisoners – deciding whether they were placed in the men’s or women’s estate, after intensive individual risk assessment – was against the law. The Scottish Government has chosen not to appeal, and earlier this week those trans prisoners who were housed in line with their gender identity (ie trans women being held in the women’s estate, and trans men in the men’s estate) began to be transferred to the prison that matches their sex at birth instead.
I am keenly aware that this is an issue in which little sympathy is felt for the tiny number of people (less than 20 across Scotland) affected. But the extent to which we can genuinely consider ourselves a society that believes in the value and worth of everyone is often most tested when we are asked to apply those principles in the most controversial situations.
Let me be clear about what I don’t think. I don’t think that any trans person has an absolute right to be held in the general population on a prison estate that matches their gender identity. There may be reasons that is not appropriate – most importantly, if they pose a genuine risk to others. In that situation, it is absolutely right that the safety of other prisoners takes priority. The previous SPS policy already included this.
Fatal consequences
Yet what I think is completely intolerable is the situation following this ruling, where every trans person must be housed in line with their sex at birth. That is how prison policy worked in Scotland, and across the UK, until a few years ago. The consequences were extremely serious, affecting mostly trans women. When trans women were in shared prison spaces with men, prison services often judged they could not be kept safe, due to the risk of abuse, violence and distress. The only option became isolation. The horrendous impact of this on people’s mental health is well documented.
Only last year, a Fatal Accident Inquiry found that SPS unlawfully segregated a trans woman prisoner, Sarah-Jane Riley, who died by suicide in a men’s prison in 2019. Between 2015 and 2016, four transgender women died by suicide in men’s prisons in England, leading to a change of approach to the one that has just been ruled unlawful in Scotland.
I am of the view that being deprived of your freedom is as much punishment as any person should expect from being sent to prison. I do not think that being unsafe, segregated, or placed in such distress that you may feel that suicide is the only option is a policy that should be pursued by a state body.
This is preventable, not inevitable. But it requires a legal framework acknowledging that trans people need our identities to be believed and recognised. This ruling, building on last year’s Supreme Court judgment, moves UK law further from that, and is completely out of step with our European neighbours. The wait for a society that truly believes in the value and worth of everyone goes on.
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Vic Valentine is manager of Scottish Trans