Scottish Government will not challenge trans prisoner ruling, Neil Gray confirms

The Scottish Government will not challenge a court ruling on the housing of transgender prisoners, it has been confirmed.

Last week judge Lady Ross ruled the current policy allowing some trans women to be housed in the female estate is “unlawful”.

Now ministers have confirmed they will not appeal the court’s decision and the Scottish Prison Service has withdrawn the guidance, with work underway to transfer the prisoners affected.

Justice secretary Neil Gray said: “Following careful consideration of Lady Ross’s judgment, we accept the ruling and have decided not to appeal.

“This case involved important considerations of ministers’ legal obligations as well as the serious practical implications arising from the issues before the court, including the risk of suicide recognised in the judgment.

“The Scottish Government frequently has to make difficult decisions which balance the different interests and rights of individuals, often in complex situations, and this was one such situation.

“The focus now moves to implementing the law, as clarified by the court, maintaining a clear focus on the safety, wellbeing and rights of all those living and working within Scotland’s prisons. The Scottish Prison Service withdrew their transgender policy yesterday, and work is underway to implement transfers of prisoners today.

“The safety, wellbeing and rights of all those living and working within Scotland’s prisons and the welfare of affected individuals will be the primary consideration and operational changes will be taken forward carefully, lawfully and in a managed way.”

The court ruling followed a case brought by feminist group For Women Scotland (FWS).

It challenged the rules allowing some male inmates to be treated as women and held in the female estate, in accordance with their trans status.

FWS argued that this was in breach of the UK-wide Equality Act which protects single-sex spaces and services.

The Scottish Government argued that a blanket rule on the housing of trans prisoners could breach their human rights, but the judge dismissed this.

A previous FWS challenge established that ‘woman’ in the terms of that act refers to biology, not preferred gender. The ruling confirmed that it is lawful to exclude trans people from services and spaces designed for the opposite sex, such as toilets and counselling groups.

A small number of transgender inmates have been held in women’s facilities and will now be relocated.

Gray’s statement followed a question in parliament by George Adam MSP, who sought an update on the policy.