A judge has ruled that Scottish prison guidance allowing some transgender prisoners to be housed according to their gender identity rather than their biological sex at birth is unlawful, in a significant defeat for the Scottish government’s current policy.
Judge Lady Ross ruled that sex segregation within prisons must be based on biological sex, citing last year’s Supreme Court ruling that established the legal definition of a woman in equalities law. The case was brought by campaign group For Women Scotland through a judicial review, with the organisation arguing that only those born biologically female should be held within the women’s prison estate.
In her ruling, Lady Ross found the current guidance “in conflict with the requirement that prison accommodation be provided separately for men and women” and described it as “a mis-statement of the law.” She concluded: “In all the circumstances, the prisons guidance is unlawful.”
Under the existing system operated by the Scottish Prison Service, individual risk assessments are used to determine prisoner placement, with the aim of keeping anyone deemed a danger to women out of the female estate. The guidance has previously allowed for circumstances in which transgender women, who are born biologically male, could be housed alongside women if assessed as not posing an unacceptable risk to them — a provision now found to be unlawful.
Lawyers for the Scottish government had argued during the case that restricting transgender prisoners to facilities matching their biological sex would breach their human rights under the European Convention on Human Rights and create an unacceptable risk of suicide. The Supreme Court’s earlier ruling acknowledged that Article 8 of the Convention, which protects private and family life, is engaged in decisions about prison accommodation for transgender prisoners. However, the court determined that Article 8 does not create an automatic right for a transgender prisoner to be housed in accommodation designated for the opposite biological sex, finding the right qualified and subject to restriction where there is legitimate justification, including maintaining sex-based segregation within prisons.
The judge did acknowledge that exceptional circumstances could still arise. In cases involving a serious threat to life, such as a genuine risk of suicide, Article 2 of the Convention, which protects the right to life, might require consideration of whether accommodation in a prison designated for the opposite biological sex was necessary.
For Women Scotland brought the case following its successful appeal to the Supreme Court over the definition of a woman in the Equality Act. Co-director Susan Smith said the group was “delighted” with what she described as a “comprehensive victory.” She said: “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.”
First Minister John Swinney had previously told MSPs that the Scottish government accepted the Supreme Court ruling but had assessed that prisons guidance “does not need to be changed.” He said ministers “must wrestle with complex issues and make difficult decisions which balance and reflect the interests and rights of individuals.”
Scottish Conservative equalities spokesperson Meghan Gallacher said the SNP had “failed” to properly implement the Supreme Court ruling, and urged Swinney to rule out defending any further gender self-identification policies in court and to ensure the verdict is implemented consistently across public bodies.
