Trans prisoners rule change would violate human rights, Scottish Government claims

A “blanket rule” on imprisoning transgender offenders by their birth sex would violate prisoners’ rights, the Scottish Government is to argue.

The SNP administration is going back to court in the wake of a 2025 judgment over the meaning of ‘sex’ in the Equality Act.

The UK-wide legislation governs service provision and enshrines the right to single-sex services for men and women, also providing protections against several forms of discrimination.

When campaign group For Women Scotland (FWS) raised a legal challenge, claiming Scottish Government rules around membership of public boards was in breach of the legislation, the UK’s Supreme Court agreed.

The Scottish Government said it respected the court’s judgment.

However, existing rules allow transgender women to be housed in the female prison estate if it is considered that they do not pose an “unacceptable risk of harm”.

Critics wanted that changed, and the government is now preparing to argue that its stance allowing some transgender prisoners to serve time in jails according to their gender identity, not their biological sex, should continue.

FWS says biological males should not be held in the women’s prison estate on grounds of safety and dignity for female inmates.

Last week First Minister John Swinney said the government would publish its legal argument to ensure observers are “well-informed” about the case. He said the government’s own assessment is that prisons guidance “does not need to be changed” and ministers are working to ensure all policies are compliant with human rights and other laws.

That material has now been released ahead of a three-day hearing at Edinburgh’s Court of Session from 3 February.

It says that the Equality Act “does not mandate sex segregation” and states that a person’s birth sex is “not the sole determining factor” in which prison they are placed in.

And it suggests changing this could “violate the rights of some prisoners” and lead to future challenges.

The government’s case argues for a “balancing act”, suggesting that campaigners may want trans men – women living as men – to be housed in the male estate, undermining the case for change.

Responding to the publication, Tory equalities spokesperson Tess White – who welcomed the Supreme Court judgment – accused Swinney of “continuing to betray” women. 

She said: “The highest court in the land was clear that the definition of a woman is based on biological sex. It is shocking that John Swinney is using taxpayers’ money to effectively oppose this principle in court.

“Women’s rights to single-sex spaces must be protected. No male-bodied criminal should be housed in a female prison – end of story.”