'Individualised' approach planned for transgender people in custody policy
It follows the case of double rapist Isla Bryson who was originally placed in Cornton Vale before being moved.
Transgender prisoners with a history of violence against women can be placed in the female estate if they are deemed to not present an "unacceptable risk of harm", a new policy has stated.
In the Scottish Prison Service's (SPS) new managing transgender people in custody policy, an "individualised" approach is set to be taken when the new rules are enforced from 24 February next year.
It means that individuals will "initially" be placed in the male estate until sufficient information is known on whether they can be admitted in accordance with their chosen gender.
If placing them in the female estate "gives rise to unacceptable risks that cannot be mitigated", inmates will not be placed in their chosen prison.
The violence against women policy means that if a transgender prisoner is known to have been convicted, remanded or awaiting sentencing for trials including murder, rape or sexual harassment, they will not be eligible for admission 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 or harm" to other prisoners.
The policy states: "Where evidence exists that the current or proposed arrangements for the management, or placement, of a transgender person in custody would be a risk to the safety of the person, another person living in custody, or to staff members, steps should be taken to ensure that this risk is minimised as far as practicable".
Measures include placing the prisoner in the estate that aligns with their sex at birth, enhanced monitoring or placement in a different area of the establishment where risks can be mitigated or managed.
Justice Secretary Angela Constance said the updated policy supports the rights of transgender people and the welfare of other prisoners and staff.
The Scottish Tories said the policy is "unacceptable" and puts women at "even greater risk".
The changes come following a political storm earlier this year when transgender double rapist Isla Bryson - originally Adam Graham - was placed at HMP Cornton Vale, Scotland's only all-female prison, before the prisoner was eventually moved to the male estate at HMP Edinburgh.
Ms Constance said: "This updated policy protects the safety and welfare of staff, those in their care and the rights of transgender people. It makes clear that if a transgender woman meets the service's violence against women and girls criteria, they will be admitted and accommodated in the male estate.
"SPS has considerable expertise as well as a duty of care for the management of people in their custody and this policy upholds its responsibilities to deliver safe, secure and suitable services for all."
SPS chief executive Teresa Medhurst said: "I can say that anyone who has a history of violence against women and is currently assessed as a risk to women will not go into the female estate."
Ms Medhurst also said that any history of violence against women and girls will be taken into account as part of the process, while anyone whose history is not known will remain in the male estate until a risk assessment can be undertaken.
Asked if the risk assessment process being "subjective" could result in some women being put at risk, the chief executive said the process was "very well-tested within the Scottish Prison Service".
There are no plans to create a separate unit for trans women within the male prison estate, Ms Medhurst said, adding that there could be risks of isolation and further vulnerability given the small numbers of transgender prisoners.
"I undertook a case review, as I committed to earlier in the year, and I'm satisfied that all transgender women and all transgender men currently in the Scottish Prison Service are housed in the most safe locations possible," she said.
Russell Findlay, justice spokesman for the Scottish Tories, said: "The SNP shamefully used vulnerable and voiceless female prisoners to impose its dangerous gender self-ID policy by stealth, which resulted in the obscene case of Isla Bryson being sent to a woman's jail.
"These long overdue new guidelines actually put women at even greater risk by further eroding their fundamental right to single-sex space.
"They say that male prisoners with a history of violence against women or girls should be allowed in the female estate and will only be blocked if they present a risk, which is completely subjective. This is clearly unacceptable - and SNP ministers need to go back to the drawing board."
Interim arrangements put in place earlier this year, which place transgender individuals on the basis of their sex at birth and prevents transgender inmates with a history of violence against women from being transferred to the female estate, will stay in place until February.