Why is the Scottish Government being taken to court over trans prisoners?

The Scottish Government will defend its policy of placing transgender prisoners in female jails at the country’s highest civil court on Tuesday.

In a case at the Court of Session, For Women Scotland is challenging the current guidelines in place and seeking to have them struck down.

The group’s judicial review will be heard between Tuesday and Thursday.

Why is For Women Scotland taking legal action?

The group are challenging 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.

They argue 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.

Politics

UK Supreme Court rules ‘woman’ means biological female

Campaign group For Women Scotland have won a legal challenge against the Scottish Government.

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 will argue 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.

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.

A spokesperson for For Women Scotland said: “The Scottish Prison Service already manages many vulnerable men, 80% of transgender prisoners are housed in a prison estate matching their biological sex, and that the biologically male prisoners known to be housed in the female estate have been convicted of “brutal crimes”.

What policy are they challenging?

They are challenging the Scottish Prison Service’s 2024 policy on the housing of transgender prisoners.

The group says it may allow some prisoners who are biologically male to serve sentences in women’s prisons, which they claim makes it unlawful.

The Scottish Prison Service updated its policy for the management of transgender people in custody 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.

SPS head denies ministers pressured the move of Isla Bryson STV News

Current SPS rules state that “when staff have enough information to reach a decision that a trans individual can be safely accommodated, they will be placed in an establishment which matches their affirmed gender”.

What is the Scottish Government’s response?

The Scottish Government is expected to argue in court that the petition is “irrelevant” and should be dismissed.

Ministers will argue that adopting a blanket rule – meaning all transgender prisoners must be housed strictly according to biological sex – could violate human rights in certain cases.

They will also say that automatically housing all trans prisoners according to biological sex could violate rights under the European Convention on Human Rights (ECHR).

A Scottish Government spokesperson told STV News: “As the First Minister has made clear, the judgment of the Supreme Court is accepted by the Scottish Government.

“What we are doing – as any responsible government must – is ensuring our policies comply with all our legal obligations, including, of course, the Scotland Act and European Convention on Human Rights.

“Every key area of government which is or may be affected by the Supreme Court judgment is carrying out assessments across legislation, guidance and policies – and in some areas changes have already been made.

“The Prisons Guidance has not been changed, and it can be taken from that the Scottish Government has concluded it does not need to be changed in light of the Supreme Court judgment.

“For Women Scotland has brought proceedings challenging that conclusion, as they are entitled to do. The matter is now before the court.

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

Sarwar: Labour would ensure prisons are single-sex

Anas Sarwar has said he would act to ban transgender prisoners from women’s jails “within days” if he becomes First Minister.

The Scottish Labour leader said his party would ensure that prisons are “single-sex, based on biological sex”.

Writing in the Daily Record, Sarwar said it is “simply not right that men who have committed sexual or violent crimes against women can be housed in women’s prisons”.

He continued: “The law is clear. The Supreme Court is clear – the Equality Act must be respected.

“That means defending single-sex spaces for biological women in services, in sport and in everyday life. That is what I will deliver in government.

“Nowhere does this matter more than in our prison system. Many women in custody have experienced trauma and violence, often at the hands of men.”

He added: “Within days of being elected, Scottish Labour would ensure prisons are single-sex, based on biological sex, and bring an end to years of confusion and legal dispute.

“While the SNP obsesses over division, Scotland’s NHS is under unbearable strain. Too many children are being let down in school.”

What is the prison service saying?

A Scottish Prison Service spokesperson said: “Our staff work hard to support the health, safety, and well-being of all people living and working in Scotland’s prisons.

“As this is subject to proceedings, it would be inappropriate to comment.”