Sending a trans woman to a women’s prison is nothing new, but it remains a controversial part of the debate on trans rights.
In Scotland, this week, though, an individual convicted of double rape against women was sent to a women’s prison, and many see it as an incendiary example of how women’s rights could be at risk of being eroded if trans rights legislation is not crafted carefully.
To give some background, a trans woman called Isla Bryson was sent to Scotland’s only all-women’s prison, Cornton Vale, having been convicted of rape.
Bryson self-identifies as a woman. The prisoner transitioned after committing the horrendous sex crimes, which were carried out when Bryson was identifying and living as a man.
To be clear, the inmate was in the women’s prison for a matter of days during a period of assessment, and has now been removed.
The inmate is now in an all-male prison, but not before causing embarrassment for Scotland’s first minister.
Nicola Sturgeon has been criticised for this rapist being anywhere near a women’s prison, and the timing of it really could not have been worse.
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The Scottish government’s Gender Recognition Reform legislation aims to make it easier and faster for people to change their legal gender and obtain an official gender recognition certificate.
The Scottish Parliament overwhelmingly voted for this but it was blocked by the UK government with one of the principal objections being that it could be open to exploitation from predatory men who wanted to abuse the legislation to access women's only spaces with bad intentions.
Sturgeon denied that was a risk, accusing the UK government of attacking Scottish democracy and stoking fears in a ‘culture war.’
For her to then have to answer questions on this very issue just days later is, to put it lightly, awkward.
Sturgeon’s defence is that the process for dealing with Isla Bryson is not unrelated to the gender recognition bill, and she's not wrong.
In the case of this double rapist, it is understood Bryson is not even in possession of a gender recognition certificate - nor would would the inmate need to be to be held in a women's prison in Scotland.
That's because the rules of the Scottish Prison Service allow individuals to self identify, and they’ll then be kept away from the general population in a women's prison - as Bryson was - while a risk assessment is carried out.
In this case, Bryson was indeed deemed to be a risk and so has been sent to an all-male prison. It could be argued this system has worked exactly as it is supposed to do to protect women, because the inmates at Cornton Vale never had to spend a single minute living alongside this rapist.
These are the rules of the SPS, separate from the gender reform legislation, and they are rules that have existed for almost a decade.
However, for many people this scandal is inherently connected with the gender reform proposals.
Legal experts have expressed concerns that if you do make it easier and faster for people to change their legal gender you are, by definition, loosening the restrictions.
If someone with malevolent intentions obtains one of these gender recognition certificates it is not an automatic pass to access women’s only spaces, but concerns have been expressed that it would add more weight to their argument they should be into places such as a women's prison.
The argument could be made that if an individual is legally recognised as a woman then what right does the Scottish Prison Service have to tell them they are not?
The prisons themselves could be open to legal challenges, and it is of course not just prisons tangled in this debate, but leisure centres with gendered change rooms, and also schools since the Scottish Government’s proposal would lower the age someone can change their legal gender from 18 to 16.
Fundamentally, this is untested and much of the debate is driven by fear.
The ‘trans debate’ is deeply entrenched in the Culture Wars of our times - a relatively rare example of a subject that has been hotly contested online now successfully creeping into real life and bringing all of the ire and, at times, scaremongering misinformation with it.
What the Scottish Government is learning is that there can be cases where trying to improve the rights of some trans people could create an overlap with the rights of some women, and there are instances where this does create friction.
Sturgeon has tried hard to present her position as being on the righteous high ground, demonstrating positive intentions in this debate, in stark contrast with what she has presented as the trouble-making and regressive objections of a Tory government.
That position is harder for her to hold now because, although she may be technically correct that her legislation is not directly related to this worrying case of Isla Bryson, it is also the case that in the eyes of many in the public her promise that changing the rules around gender reform does not and cannot have any negative effect on women’s rights no longer holds water.
There are many who want answers to questions about safeguarding, and that could force further amendments in her legislation she had previously resisted.
To that end, Scotland’s first minister can certainly claim to be right, but her position on the issue has been weakened.
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