STV NewsTrans prisoners in Scotland are to be moved out of female jails from today after the Scottish Government confirmed it will not appeal a court ruling.
Ministers lost a legal battle at the Court of Session last week over a policy set out by the Scottish Prison Service (SPS) of placing transgender prisoners in female jails.
For Women Scotland won its bid to challenge the existing guidelines and to have them struck down.
The group challenged the Scottish Government’s position on the management of transgender prisoners, specifically whether they should be placed in prisons according to their biological sex or assessed on a case-by-case basis.
STV NewsThe policy set out by the SPS, an executive agency of the Scottish Government, was updated in 2024 following growing scrutiny over the case of Isla Bryson.
Bryson was initially housed in a women-only prison before being swiftly moved to the male estate following a public outcry in 2023.
On Tuesday, the Scottish Government confirmed it will not appeal the ruling set out by Lady Ross and that the current prison policy was withdrawn on Monday.
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, well-being, and rights of all those living and working within Scotland’s prisons.
“The Scottish Prison Service withdrew their Transgender Policy yesterday, and work is under way to implement transfers of prisoners today.
“The safety, well-being 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.”
A Scottish Prison Service spokesperson added: “We are grateful for Lady Ross’s judgement and today’s confirmation from Scottish Ministers that they do not intend to appeal.
“This gives welcome clarity and we have taken immediate action to withdraw the policy and will manage people in accordance with their biological sex, whilst ensuring a planned and safe transfer of the small number of individuals in prison who require to be moved.”
For Women Scotland argued the Scottish Government’s policies on transgender people in the justice custody system are inconsistent with a Supreme Court ruling the group previously won on the definition of a woman.
The unanimous decision determined that the terms “woman” and “sex” in the 2010 Equality Act refer to biological women and sex.
This means it does not extend to a trans woman with a gender recognition certificate (GRC) – which Supreme Court judge Lord Reed referred to as granting “certificated sex”.
In legal arguments published ahead of the Court of Session case, the Scottish Government said that a blanket ruling that transgender offenders can only be placed in a prison that matches their sex at birth risks violating their rights.
The government argued that placing prisoners in a prison for those of the opposite biological sex may be required to prevent a violation of the Human Rights Act.
Decisions on the placement of transgender prisoners are based on an “individualised assessment”, and there has been no “significant operational issue” as a result of transgender prisoners being housed in jails for the opposite sex.
On Friday, Lady Ross ruled that trans prisoners’ rights “do not extend to a right to be accommodated in a prison for the opposite biological sex”.
She ruled that “in all the circumstances, the prison’s guidance is unlawful”.
She added: “It is possible 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.”
Susan Smith of For Women Scotland said: “This has been a long fight, and one which should never have been needed. We hope this marks a turning point and the Government immediately ensures all policies comply with the law.
“Questions must also be asked why they allowed taxpayer-funded organisations and individuals to misrepresent the law.
“Sadly, the statement issued by the minister focused on the men who are to be moved, with no reference to the women who have suffered under this iniquitous policy and who deserve a fulsome apology and an acknowledgement of the harm and trauma they suffered.”
What does For Women Scotland want to happen in prisons?
For Women Scotland argues that Scottish ministers have a legal duty to provide:
- Female-only prison accommodation
- Prison facilities that are separate and distinct from those for men
- They also argue that the Scottish Government must ensure that no biologically male prisoners are housed in the women’s prison estate
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