Joanna Cherry: The question of trans people and Scotland's jails

Its impact in Scotland was rather lost amid all the sound and fury about the placing of a rapist in a woman’s prison. When I did the media round to talk about the report on Wednesday morning that was all anyone really wanted to talk about.

However, the report makes points about human rights which might help us navigate the issue of how we deal with this situation, including the importance of the principle that human rights are universal and that no law should carve out groups of people for whom human rights are watered down or made more difficult to enforce.

READ MORE: Joanna Cherry: UK wants to limit human rights as Scotland looks to expand them

A quick recap. In their 2019 General Election manifesto, the Tories, still smarting from the prorogation defeat in the UK Supreme Court, promised to redress the balance between Parliament and the courts and “update” the Human Rights Act (HRA).

Last summer when Boris Johnson was still PM, Raab, his justice secretary, produced the Bill of Rights Bill, which shocked many by proposing to repeal the Human Rights Act altogether but the bill has yet to be debated in Parliament. Liz Truss sacked Raab, and binned the bill, probably the only worthwhile thing she’s ever done.

But Sunak put Raab (below) back in his old job where he remains – despite multiple complaints of bullying – and he’s determined to resurrect the bill, which is very much his baby. That said, Sunak seems less than enthusiastic about it, and I hope our report might be the final nail in its coffin. The JCHR believes that a Bill of Rights should reaffirm and reinforce the fundamental rights that protect everyone in the UK. But this bill would remove and restrict certain human rights protections the UK Government finds inconvenient and prescribe a restrictive approach to the interpretation and application of the European Convention on Human Rights (ECHR) in the courts of our domestic legal systems.  

If the bill was enacted, it would result in more barriers to enforcing human rights, more cases taken to Strasbourg and more adverse judgments against the UK. Decades of precedent and case law, that the UK still plays a key role in developing, would be abandoned, leading to legal uncertainty and litigation.   

It’s as far away as the UK could get from following the approach of the European Court of Human Rights without leaving the ECHR. But we think if the UK is to stay in the ECHR, it needs to be done with integrity.

The JCHR is also very concerned about the adverse impact of the bill on the constitutional arrangements of Scotland, Wales and Northern Ireland to which the HRA and the ECHR are central. We recommended that the bill should not be passed without the consent of the Scottish Parliament, the Senedd and the Northern Ireland Assembly. Of course, you and I know that such weight would never be given to the Scottish Parliament’s wishes – that’s why we need independence.

READ MORE: Sunak urged by MPs to abandon ‘damaging’ Bill of Rights

The theme of the universality of human rights runs throughout our report. We also emphasise that the majority of those who gave evidence to us and responded to our consultations and survey supported keeping the HRA.

Most people like the fact that the HRA makes sure everyone living in the UK can access and enforce the same rights regardless of where they come from or what their status in our society.

Even prisoners have human rights. Women’s and victims’ groups repeatedly emphasised to us how important the HRA has been in vindicating the rights of women and girls and protecting them from male violence. Women in prison have the same human rights as you and me, including the right to be free of inhuman and degrading treatment and the right to dignity and privacy.

And so back to the case of the rapist temporarily housed in a woman’s prison.

Over the last few days we have heard politicians and commentators say repeatedly that this issue is completely separate from the Gender Recognition Reform (Scotland) Bill (GRR Bill). They are wrong. The same ideology underlies both the current Scottish Prison Service (SPS) policy and the GRR Bill.

The policy collective Murray Blackburn MacKenzie have written extensively about the current SPS policy to accommodate self-declared transgender prisoners on a case-by-case, risk assessed basis.

It identified that the Scottish Trans Alliance (STA) was closely involved in the development of the policy. In the STA’s own words: “We strategised that by working intensively with the Scottish Prison Service to support it to include trans women as women on a self-declaration basis within very challenging circumstances, we would be able to ensure … that all other public services should be able to do likewise.”

I don’t have a problem with STA being involved in shaping the policy but other voices should also be listened to and I fear the impact on the rights of women prisoners has not been properly considered.

I am also worried that it seems women’s prisons which contain some of the most vulnerable women in our society appear to have been used as a testing ground for a policy which has proved to produce the very risks to and impacts upon women’s safety of which I and other feminists have warned.

I was pleased to hear at FMQs that this rapist (Isla Bryson, above) will not now be held at Cornton Vale. However, there are women’s units elsewhere in the prison estate, including at HMP Edinburgh in my constituency which I visited recently, and I do not believe that a rapist should be anywhere near any of them.

As events unfolded yesterday it was clarified that he will be held in the male estate. Good news for women prisoners but this decision also has wider ramifications, for it seems at last to be an admission by those in authority that some men who self-identify as trans, may not actually be trans at all, which is what I and others have said all along.

READ MORE: Does Scottish gender reform affect trans criminals in women's prisons?

Rhona Hotchkiss, the former governor of Cornton Vale, has confirmed there are and have been a significant number of other transgender prisoners housed in the women’s estate, that some have caused problems and that she has never known any of them to have gone through surgical changes.

Recent Scottish research revealed that many transgender prisoners in women’s prisons only self-declared as women after they were imprisoned and that some go back to living as men on the outside.

Frankly, this suggests that some at least are gaming the system. The fact the rapist in the current scandal did not begin transitioning until he was charged with rape might also strike some people as a tad suspicious.

I understand the current SPS policy has been under review for three years and will be reissued “in the coming months”. In the light of the events of the last few days, it needs to take a fresh look at its draft.