Transgender prisoners in Scotland will be placed in jails according to their biological sex after the Scottish Government confirmed it would not appeal a legal ruling. Judge Lady Ross ruled the prison guidance, which saw inmates placed in custody in line with their acquired gender, was "unlawful" last week.
Cabinet Decision Not to Appeal
Senior Scottish Government ministers meeting for Tuesday’s Scottish cabinet agreed not to appeal that decision, First Minister John Swinney confirmed. Justice Secretary Neil Gray said that with the focus now on implementing the law, work was underway to "implement transfers of prisoners" on Tuesday.
Before that, the Scottish Prison Service was said to have housed some trans inmates in the female prison estate, if they were not believed to pose a threat to women prisoners. The campaign group For Women Scotland had brought the case against the Scottish Government in the wake of their victory at the Supreme Court in April last year.
Legal Background and Implications
Judges at the UK’s highest court made clear the term "woman" in the Equality Act refers to a biological woman. The First Minister said that legal arguments over where trans prisoners should be housed had involved a "complicated interaction" of the Equality Act and the European Convention on Human Rights. "Those issues are intensely complex, which is why this issue has been resolved by the Court of Session," the SNP leader told journalists. But he added when the issue was considered by cabinet on Tuesday, ministers had concluded "that we should not appeal this judgment."
Swinney added: "The Scottish Prison Service is now taking practical steps to implement the consequences of that judgment." However, he refused to apologise for contesting the case, adding: "Sometimes these issues have to be challenged in court to establish the certainty that is required."
Concerns Over Suicide Risk and Implementation
During legal proceedings, concerns had been raised about the possibility of an increased suicide risk for transgender offenders, if they were placed in a prison in line with their biological sex. The Justice Secretary said: "This case involved important considerations of ministers’ legal obligations as well as the serious practical implications arising from the issues before the court, including the risk of suicide recognised in the judgment. The Scottish Government frequently has to make difficult decisions which balance the different interests and rights of individuals, often in complex situations, and this was one such situation."
"The focus now moves to implementing the law, as clarified by the court, maintaining a clear focus on the safety, wellbeing and rights of all those living and working within Scotland’s prisons. The Scottish Prison Service withdrew their transgender policy yesterday, and work is underway to implement transfers of prisoners today." He added: "The safety, wellbeing and rights of all those living and working within Scotland’s prisons and the welfare of affected individuals will be the primary consideration and operational changes will be taken forward carefully, lawfully and in a managed way."
