THERE’S an old saying that hard cases make bad law, and a slightly newer one that bad law makes hard cases. The conundrum is this: should laws be drafted with the most likely eventualities in mind, or should legislators have regard for worst-case scenarios?

When I last wrote about the Scottish Government’s proposed reforms of the Gender Recognition Act, some readers were outraged. I was accused of transphobia, of bigotry, or causing harm to trans people and, most confusingly, of suggesting all trans women were sexual predators. Some readers seemed to assume I was wading into this complex debate from a position of almost total ignorance, while others felt left behind, complaining they couldn’t make head nor tail of the jargon I’d used and the concepts I’d described.

So allow me, in returning to this topic, to begin with some basics about gender identity and. In 2014 the Scottish Prison Service (SPS) and the Scottish Transgender Alliance worked together to produce a “gender identity and gender reassignment policy” for people in custody. This document sets out rules on everything from information-sharing and body searches to accommodation and case management. In a nutshell, it means that if someone tells the prison service they are trans, this should be respected and their particular needs accommodated.

From time to time, a case related to transgender identity and prisons will come to public attention – usually via a tabloid newspaper report quoting “prison sources” – that prompts outrage. It’s probably fair to say that much of this outrage is rooted in the parallel beliefs that anyone sent to prison has forfeited their right to be treated humanely, and that this population is fundamentally dishonest and will do whatever it takes to get one over on prison staff, the justice system and/or society in general.

But not everyone with concerns about transgender rights in prison is a frothing right-winger. Some fear that male prisoners, in particular male sex offenders, may claim to be women in order to be moved to women’s prisons either so they’ll be safer, or they can have access to vulnerable women, or for both of these reasons.

There are two potential misunderstandings to clear up here. Firstly, decisions about where to house a prisoner – any prisoner – are informed by risk assessments, and there is no guarantee a transwoman will be moved to a women’s prison.

But secondly, under a self-ID system a “male prisoner claiming to be a woman” would become legally indistinguishable from a transgender woman prisoner. Advocates of self-ID point to other countries where such systems have been introduced, saying there’s no evidence of false or fraudulent claims, but it’s not clear how exactly a false claim would be identified.

If being trans is a matter of self-ID, how can any claim be said to be “genuine” or “false”? And is it in the interests of those trans prisoners who have jumped through bureaucratic hoops to have their identity legally recognised – and may well have strong views about how that process could be improved – to simply remove the hoops altogether?

You might be wondering why this bureaucratic stuff matters, given the 2014 policy already states that prisoners declaring themselves trans should be treated as such. This is where things get complicated, and where the Gender Recognition Certificate (GRC) comes in. Many insist these certificates don’t matter much, as they merely allow a trans person to change the sex on their birth certificate, bringing it into line with other forms of ID. But that’s not quite true. Another reason GRCs matter is that once a person has one it becomes a criminal rather than civil offence for someone who acquires information about their previous gender identity in an official capacity (such as a prison officer) to disclose it.

Currently, to obtain a GRC a trans person must convince a Gender Recognition Panel that they have gender dysphoria, and that they have “lived in the acquired gender” throughout a period of two years.

They must also make a statutory declaration that they intend to live as this gender until they die. Gender dysphoria is defined by the American Psychiatric Association as “a marked difference between the individual’s expressed/experienced gender and the gender others would assign him or her” that causes “clinically significant distress or impairment”. The 2004 Act does not define what “living in” a particular gender might mean. In fact, it doesn’t even define gender, and makes only the briefest of references to biological sex.

Clearly, as it stands, prisons must respect a prisoner’s desire to “live in” a different gender, otherwise no prisoner could ever hope to obtain a GRC. But with a move to self-ID, the Scottish Government proposes to do away with the Gender Recognition Panel altogether. Its consultation document states that “the 2004 Act requirements are unnecessarily intrusive”, and it agrees with the verdict of the Westminster Women and Equalities Select Committee that this “medicalised, quasi-judicial application process” ought to be binned.

The Scottish Government’s consultation closes on March 1, and it is to be hoped prison staff will be empowered to voice any fears they have about the potential impact of the proposed reforms on their work. Those who doubt that any man would seek legal recognition as a woman for personal advantage (the subtext being that women are so disadvantaged and disempowered in society, this simply makes no sense) should consider the particular power dynamics and perverse incentives in prisons. And if the Government’s policy is found not to be prison-proof, it must go back to the drawing board.