Isla Bryson should have been anticipated by policy-makers

Details of the case were certainly enough to provoke a despairing exclamation – even before it was revealed that Bryson had gained access to young women by enrolling on a college beauty coursebefore the trial.

But those words have never been far from my mind whenever the topic of “trans prisoners” has been raised, because of the ways in which the notorious Andrew Burns has been exploiting prison self-identification policies for the best part of a decade.

God Almighty is just one of the names by which he has demanded to be addressed, with others including Mighty Almighty, Obi Wan Kenobi and the latest, Tiffany Burns.

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When it was reported in the middle of last week that prison officials had approved Burns for transfer to a women’s prison, I suspected mischief.

Surely the anonymous source could not be correct in stating that this prisoner – once branded “too dangerous for the dock” due to his habit of biting open his veins to spray blood at those near him – had been risk-assessed and found suitable for accommodation anywhere in the women’s estate.

There could scarcely be a clearer example of someone seeking to exploit prison policies as a way of exercising control.

The Scottish Government will not, of course, comment on individual cases but the reaction of Justice Secretary Keith Brown to this latest report appears to give it credibility.

Despite asserting that he has full confidence in the decision-making of the Scottish Prison Service (SPS), he has introduced new measures that are designed to restrict the ability of men who identify as women to gain access to women’s prisons while a review of the management of trans prisoners is completed.

He has also emphasised that “SPS policies have in no way been changed or impacted by the recent passing of the Gender Recognition Reform Bill”.

The SPS review to which Brown referred was expected to have been concluded last summer, and no explanation has been provided for the long delay.

It appears the review process is still ongoing – if a new policy was ready to go, why not simply publish and implement it now, instead of making prison policy on the hoof in response to a media firestorm?

Throughout the debate about the GRR we heard MSPs from various parties assert that this legislation would have no impact whatsoever on prisons, which would suggest they must have known what the new policy was going to say.

Surely they weren’t being so cynical as to make that statement based on the letter of a 2014 policy that was in the process of being rewritten. If in fact it’s still being drafted even now, why were they so confident in their assertions?

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The measures Brown has put in place are perhaps a good illustration of why detailed reviews into the operation of policies are required, working through the logic of what is written and how it will impact on exceptional cases.

Have the implications been thought through? Have difficult questions been asked? It shouldn’t take an Isla Bryson or Tiffany Burns to test the limits.

When STV’s Peter Smith asked Nicola Sturgeon whether someone born female would be housed in the male prison estate, she said “I don’t think there are circumstances there” before agreeing with the statement that “it’s different for trans men”.

But the new measures are clear: “No newly convicted or remanded transgender prisoner with any history of violence against women will be placed in the female estate.”

The phrase “transgender prisoner” is not synonymous with trans-identifying male prisoner – it must also refer to trans men.

It follows that if a trans man with a history of violence against women is sent to prison then they should be accommodated with men. Brown’s statement says the new measures will apply “unless there are exceptional circumstances”, but does the prisoner being female count as an exceptional circumstance?

On Monday, Sturgeon said the trans prisoner transfer pause was to provide clarity (Image: PA)

One suspects the legal advice was to make any measures “gender-blind” (or more accurately, sex-blind), but they are underpinned by the assumption that the prisoners in question will be requesting to move to an opposite-sex prison, not seeking to avoid the same.

Journalists will no doubt continue to challenge politicians and activists over whether “trans women are women” in all circumstances – but it’s helpful to follow Smith’s example and interrogate what any of this means in practice. Could a trans man with a Gender Recognition Certificate re-identify as a woman on sentencing to avoid male prison?

A “lessons learned “review is under way in relation to the Isla Bryson case, but there’s a broader lesson to be learned here – don’t dismiss women who raise logical concerns about policy operation. Brown has said “we must not allow any suggestion to take root that trans women pose an inherent threat to women.”

But who is doing more to promote that notion – the women activists who knew it was only a matter of time before someone like Isla Bryson came along, or those who insist that Isla Bryson is a trans woman like any other?