A campaign group has hailed a significant victory for vulnerable women prisoners after a judge ruled it is unlawful for transgender women to be housed in the female prison estate in Scotland.
Background of the Case
Lady Ross published her decision following a judicial review petition brought by For Women Scotland (FWS), which challenged the Scottish Government's policy on the treatment of transgender prisoners. The group contested the lawfulness of the Scottish Prison Service (SPS) policy that allowed some transgender women—who are biological men—to be held in women's prisons.
This case followed FWS's success in a Supreme Court case in April last year, where the UK's highest court clarified that the term 'woman' in the Equality Act refers to a biological woman. In her decision on Friday, Lady Ross ruled that the prisons guidance is unlawful.
Reaction from For Women Scotland
Susan Smith of FWS expressed delight at the comprehensive victory. She stated: 'All the arguments from the Scottish ministers were comprehensively rejected by the court, not least their claim that housing trans-identified male prisoners in the male estate would breach their convention rights.'
Smith added: '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. Ultimately, this is a victory for the very vulnerable women in the prison estate.'
Court Proceedings and Ruling
During hearings in February, Gerry Moynihan KC, representing the Scottish Government, argued that ministers should take a 'case-by-case' approach on transgender prisoners. He cited article eight of the European Convention on Human Rights, which relates to the rights of transgender people to live in their acquired gender.
However, Lady Ross stated in her ruling that while transgender prisoners have rights under article eight, this does not extend to a right to be accommodated in a prison for the opposite biological sex. She noted that article eight rights are qualified and that there is justification for maintaining sex segregation in prisons. Additionally, she found no positive obligation under articles two or three to accommodate a transgender prisoner in a prison for the opposite biological sex.
Lady Ross wrote: 'Insofar as the prisons guidance allows SPS to accommodate trans prisoners in prisons for the opposite biological sex, it is in conflict with the requirement that prison accommodation be provided separately for men and women. That constitutes a mis-statement of the law.' She concluded that 'in all the circumstances, the prisons guidance is unlawful.'
Context of the Case
The case emerged amid public outcry over transgender rapist Isla Bryson—formerly known as Adam Graham—who was initially sent to Cornton Vale women's prison in Stirling after being found guilty in 2023 of raping two women, before being moved to a male prison.
Responses from Authorities and Politicians
A Scottish Prison Service spokesperson said: 'We are grateful to Lady Ross for her judgment, which we will carefully consider, at pace, along with the Scottish Government. It would not be appropriate to comment further at this time.'
Scottish First Minister John Swinney commented: 'Lady Ross's judgment has just been given down and it is a very comprehensive judgment, the Government will of course respect the judgment Lady Ross has put forward and consider its implications and we will set out our response in due course.'
Conservative leader Kemi Badenoch, speaking in Aberdeen, was asked if it is time for the SNP to accept defeat on the issue. She responded: 'Absolutely. It is time to draw a line under this. I do not understand why the SNP want to die on this hill of putting men in women's prisons. It's extraordinary.' Badenoch described it as a 'common sense issue' and added: 'We need to understand what the law is. The Equality Act specifies that sex, as written in the Act, is biological sex, so where there are public services and provisions that need to be made on the basis of that, that's what the SNP should follow.'
Scottish Labour equalities spokeswoman Carol Mochan said: 'The Scottish Government should respect this ruling and ensure that it is following the law. It should not take a lengthy and expensive taxpayer-funded court case to get the SNP Government to follow the law. A plan must now be set out to ensure the Scottish Prison Service and all public services are able to protect the rights, dignity and safety of all.'
