Trans prison ban would violate human rights, Scottish Government argues

The Scottish Government has said a blanket rule for housing trans prisoners according to their biological sex would violate their human rights in some cases.

A campaign group which won a legal victory on the definition of a woman is taking action against the Scottish Government over policies it says are “inconsistent” with the ruling.

For Women Scotland has lodged legal action against ministers over the Government’s management of transgender people in the custody of the justice system.

The group claims that Scottish Ministers are statutorily obliged to provide female-only prison accommodation, separate and distinct from that provided for male prisoners.

The petition also argues that the Government must ensure that no biologically male prisoners are housed within the women’s prison estate.

For Women Scotland has concluded that the Scottish Prison Service’s current 2024 policy on the housing of transgender prisoners is “unlawful” because the group says it might allow some biological males to serve their sentences within the women’s prison estate.

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

Ministers will argue that housing all transgender prisoners according to their biological sex would violate the rights of some prisoners under the European Convention of Human Rights (ECHR).

The Government said it has a “well-founded concern” that being required to adopt a policy that a transgender prisoner can never be held in a prison for the opposite biological sex “could give rise to an unacceptable risk of harm” from increased risk of abuse and suicide.

Ministers will argue that there is also a “well-founded concern about how a prisoner who is a trans man of masculine appearance can be managed if that prisoner has to be excluded from both a male and a female prison”.

The Government said all prisoners are currently subject to an “individualised assessment, including an individual assessment of risk” and, as such, transgender prisoners are assigned housing on a case-by-case basis.

The Government has said it believes the Equality Act 2010 act “does not mandate sex segregation”.

“It does not contain any ‘norm’, positive or negative, express or implied, in that regard,” the Scottish Government’s note of argument states.

“It does not absolutely prohibit deviation from any norm. It provides a remedy for an individual who is able to establish a claim.”

The hearing begins in the Court of Session on February 3, 2026.

A spokesperson for For Women Scotland said: “The Scottish Prison Service manage many vulnerable men in prison and 80% of transgender prisoners are housed in an estate which corresponds to their biological sex.

“The men we know of who are in the female estate have been convicted of brutal crimes, if they have the ‘human right’ to be locked up with women, why don’t the others?

“Rather than admit they were wrong and accept the Supreme Court ruling, Scottish ministers prefer to play dangerous games with women’s lives and safety.”