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A recent court decision has declared the Scottish Prison Service’s guidance permitting some transgender inmates to be housed according to their gender identity, rather than their biological sex, to be unlawful. Lady Ross, the presiding judge, determined that segregation in prison facilities must be organized by biological sex. This ruling aligns with a Supreme Court judgment from April last year concerning the legal definition of a woman under equality legislation.
The judicial review was initiated by the campaign group For Women Scotland, which challenged the Scottish government’s policy. They argued that only individuals who are biologically female at birth should be accommodated in women’s prisons. Legal representatives for the government contended that such a stance would infringe upon the human rights of transgender prisoners. In response to the ruling, the First Minister stated that the government would require time to carefully evaluate the judgement and its consequences.
Lady Ross described the existing guidance as conflicting with the legal requirements for sex-based segregation in prison, labeling it a “mis-statement of the law” and thus unlawful. Currently, the Scottish Prison Service conducts individual risk assessments to ensure the safety of female prisoners. Under this system, transgender women who were assigned male at birth might still be housed in female facilities if deemed not to pose an unacceptable risk. The Supreme Court had previously confirmed that all prisoners, including transgender individuals, maintain rights under the European Convention on Human Rights (ECHR). However, the court also clarified that Article 8, guaranteeing respect for private and family life, does not automatically guarantee a right for transgender prisoners to be placed in facilities of the opposite biological sex. This right is qualified and may be limited in cases where legitimate justifications exist, such as maintaining sex-based separation within prisons.
The ruling also acknowledged that exceptional circumstances could warrant different arrangements. For instance, in cases posing a serious risk to life—such as suicide threats—Article 2 of the ECHR, which safeguards the right to life, might influence decisions regarding accommodation in a prison corresponding to a different biological sex. Following the verdict, Susan Smith, co-director of For Women Scotland, expressed their satisfaction with what she called a “comprehensive victory.” She urged the Scottish government to heed their concerns rather than those of external lobby groups she believes have misled lawmakers, emphasizing that their group should not have been compelled to pursue legal action and hopes this will be the final time they must defend women’s rights through the courts.
First Minister John Swinney acknowledged the complexity of Lady Ross’s judgement and affirmed that the government would undertake a thorough review of its findings before determining how to proceed. He remarked, “We will consider all of these details because there are complex issues that are involved,” and assured that the government would evaluate how the ruling might affect prisoner management policies and respond accordingly. In contrast, Scottish Conservative equalities spokesperson Meghan Gallacher criticized the Scottish National Party for what she described as a failure to adhere to the Supreme Court ruling. Gallacher called on the First Minister to abandon defending gender self-identification policies in legal challenges and to ensure the court’s verdict is implemented consistently across public institutions
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