What to do with a transgender women convicted for rape offences carried out before changing gender, has been the subject of heated debates between the prison service and government officials in Scotland this week.

Isla Bryson was found guilty of committing rape on two separate occasions, when she was still a man and known as Adam Graham. It was revealed that she only made the decision to transition whilst awaiting trial for the crimes. She is not due for sentencing until the end of February, and initially she was held at Cornton Vale women’s prison, during a segregated assessment period; but Scottish First Minister, Nicola Sturgeon, has declared that 31-year-old Bryson will not be allowed to serve her term at that prison, due to safety concerns for other female prisoners.

She has now been moved to HMP Edinburgh men’s prison, where for now she remains in isolation. However, where she actually serves what presiding Judge Lord Scott has already said will inevitably be a lengthy custodial sentence, has got all manner of opinions.

The case is believed to be the first time a trans woman has been convicted of raping women in Scotland.

Rapes carried out before decision to transition made

The High Court in Glasgow heard that Bryson committed the crimes in Clydebank and Glasgow in 2016 and 2019, while still known as Adam Graham. Lord Scott deferred sentencing on her until 28 February, in Stirling. In the intervening weeks a multi-disciplinary assessment will have to gauge what risks exist on both sides of the argument, before deciding where to put her to serve her spell behind bars.

Risk assessment needed

Recent Scottish prison policy has been that inmates should be accommodated on the basis of self-declared identity, but that always carries with it a compulsory risk assessment, which in this case is potentially greater than any that have gone before. Normally, the decision for the accommodation corresponds with that which best suits the person’s needs and where able, should reflect the gender in which they are currently living.

Nevertheless, what is also always taken into account is the well-being and rights of not just the individual, but also of others that are around them, and that includes the staff, in order to achieve an outcome which balances the risks, while still promoting safety.

Special unit required according to former governor

Former Scottish prison governor, David Wilson, recalled managing a number of transitioning prisoners during his long career, which he said had been done on an “ad-hoc basis”, but he felt that was a strategy which could no longer be coped with. He believes that either a special unit, or at least a special wing, would have to be found, because he anticipates a growing increase cases.

However, he does not see that as a particularly challenging problem, adding: “It is not something that is so unusual, we now have special units operating that are basically being run in our prisons as hospices, because we now have so many older prisoners in our prison population; so I do not see this as any different from that, all things considered.”

First Minister makes decision based on facts

Nicola Sturgeon said her government had given no “formal direction” to the prison service on where Bryson should be held. Responding to a barrage of questions on the matter, she said: “This case is not about whether they are trans or not, this individual is a person who has been convicted of rape, so this individual is a rapist and a sex offender and that is what is important to remember here.”

Forced self on victims

The first rape occurred on in September 2016, at a flat in Clydebank, West Dunbartonshire, having arranged to meet on the Badoo dating website, whilst he was still known as Adam Graham, this had followed straight after his marriage to an unnamed woman had ended. The victim recalled how Bryson had locked the door and got into bed beside her and despite repeatedly stating “no”, he had forced himself upon her.

The second rape also took place in a flat, this time in Drumchapel, Glasgow in June 2019, once again having agreed to meet up following contact made online, on this occasion through the social media site, Bigo. That victim said she felt “crushed” as he overpowered her; stating: “I told him to stop but he did not, he just kept going; that is when I closed my eyes and let him do what he wanted to do.”

At the trial, appearing under her new name Isla Bryson, she informed the jurors that Adam Graham was now her “dead name”.

Enrolled on beauty course whilst awaiting trial

A further quite sinister disclosure emerged when it was discovered that Bryson had enrolled on a beauty course at Ayrshire College, while awaiting trial for the two counts of rape. Fellow students had been totally unaware of her past, with one stating how horrified she was on discovering the truth, recalling that at times they had to stand “practically naked” for a lesson in spray tanning.

Others commented that in the three months that she was there she was at various times, “overpowering” and “disruptive”, often branding classmates as being homophobic, before eventually being asked to leave the course.

Contrasting opinions

Community safety spokesman for the Scottish Conservatives Russell Findlay MSP made a very valid point when he referred to the fact that Bryson has not yet had gender reassignment surgery and therefore: “It would be wrong to put a male-bodied rapist in a women’s prison”, he said.

Justice Secretary Keith Brown was in a more positive mood commenting that the Scottish Prison Service had a long track record of 20 years and more, in assessing risks within the prisons and made the point that decisions are made involving lots of different organisations, and not done without careful consideration of all the facts.

MP Joanna Cherry of the SNP was more forthcoming in her views insisting that Bryson should serve the entirety of her sentence, whatever that ends up being, in a man’s prison. After voicing her concerns for the safety of women prisoners, she remarked: “To many people, it will look like this convicted rapist has gamed the system in order to try and garner sympathy, and to end up in a women’s prison, and I think a lot of people will be shocked by that.”

Campaigner highlights dangers

Campaigners echoed the thoughts of Ms Cherry concerning how vulnerable female inmates were. Kate Coleman, director of Keep Prisons Single Sex, said many had been diagnosed with mental health problems, and were likely to have experience of domestic abuse and sexual violence by men.

She highlighted that in actual fact for many, the crimes which they commit and as a consequence subsequently lead to them being imprisoned, are often associated with violent relationships with the men in their lives. She said that in prison these women become “literally a captive audience” for transgender inmates.

Well-being of prisoners taken into account

The Scottish prison service says the decision on where to house trans prisoners is taken on a case-by-case basis. Fiona Cruickshank, the head of the prison services’ public protection unit, confirmed that if an individual prisoner posed a specific risk then they could remove them and keep them separated, until such times as a decision is made on how to best manage the risk, or threat.

She was keen to stress that segregation of prisoners can affect their mental health and well-being, so the aim is always to integrate them back into the mainstream population, but accepted that in the case of transgender prisoners, it would happen slowly, and with in her words: “robust risk management, close monitoring and supervision and case conferences.”

Low trans numbers in Scotland

There are very few transgender prisoners in Scotland at present. Indeed, the latest Scottish Prison Service statistics, indicate that there were just 11 trans women, four trans men and three non-binary/gender fluid prisoners, being held out of over 7,000 male and nearly 300 female inmates.

By comparison, in England and Wales the numbers were significantly higher. At the last count up, there were 230 transgender prisoners which consisted of 49 in female prisons, six of which were trans women and a surprising 181 in male establishments, of which 162 were trans women.

The disagreements likely to continue for some time

What happens to Bryson will be decided in the coming weeks, and with so many contrasting opinions, it is guaranteed that some people will be deeply unhappy at the outcome. It is clear that despite the serious nature of the crimes, because of human rights issues, she will not be allowed to be held in solitary confinement, indefinitely.

Therefore, at some point, wherever she may be incarcerated, there is likely to be some level of mixing, which leaves authorities with a very delicate balancing act. What is certain is that this case is not going to go away quietly.