Transgender prisoners should not be held in women’s jails, court rules

Guidance allowing transwomen to be held in female jails is unlawful, a court has ruled.

The decision is a “comprehensive victory”, challengers For Women Scotland (FWS) have said.

The group took the Scottish Government to court over prisons guidance which allowed transgender prisoners to be held in jails which do not accord with their biological sex.

Lawyers for the SNP administration argued that imposing a “blanket rule” on imprisoning transgender offenders by sex, not gender, would violate their rights.

But the Court of Session has ruled that the current system is “unlawful”.

In a written judgment, Lady Ross said there is no obligation under European human rights laws “to accommodate a trans prisoner in a prison for the opposite biological sex”.

She stated: “Sex segregation in prisons in Scotland is lawful.”

The case marks the second major victory for FWS against the Scottish Government over gender rules.

The first established that ‘sex’ in the UK-wide Equality Act which governs rules over access and services refers to biology, not preferred gender.

Susan Smith of FWS said: “We are delighted to have won such a comprehensive victory in our judicial review on Scottish prison policy.

“All the arguments from the Scottish ministers were comprehensively rejected by the court, not least their claim that housing trans-identified male prisoners in the male estate would breach their convention rights.

“We hope that, in future, the Scottish Government will start to listen to us rather than the lobby groups who drafted these policies and have so egregiously misled MSPs and MPs.

“We should never have needed to take this case and we hope this will be the last time that we are forced to go to law to defend the rights of women. Ultimately, this is a victory for the very vulnerable women in the prison estate.”

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

The policy remained in place even though ministers said they respected the previous ruling on the terms of the Equality Act.

That outcome confirmed the lawfulness of single-sex spaces and services such as toilets and counselling groups.

Scottish prisons guidance said inmates could be housed in a prison aligning with their gender identity if it was considered safe to do so, meaning those with a history of violence against women and girls were not included. 

FWS argued that this was in conflict with the previous Supreme Court ruling and was a breach of the rights of women prisoners. 

Lady Ross said that in an “exceptional individual case, in a situation where there is a threat to life through suicide, it may be necessary to consider an argument that accommodation in a prison for the opposite biological sex is necessary”.

However, she stated that “disapplication or disregard of subordinate legislation cannot form part of a general policy”.

Scottish Conservative equalities spokeswoman Meghan Gallacher MSP said: “This is a victory for common sense and a humiliating defeat for John Swinney and his SNP government.

“It was outrageous that Swinney wasted taxpayers’ money fighting this case in court after the crystal-clear verdict from the Supreme Court last year.

“That confirmed that gender is based on biological sex. Yet the SNP have failed to implement that ruling a year on, with women still not guaranteed access to single-sex spaces.

“Swinney should have been acting urgently to remove men from the female prison estate, but instead he confirmed how out-of-touch he is with public opinion by forcing women to go to court to defend their rights again.

“This latest decision is another hammer blow for those like Swinney who still back Nicola Sturgeon’s extreme gender-self ID policies. Swinney must rule out any further court action trying to defend them and finally implement the Supreme Court’s verdict across Scotland’s public bodies.”

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