The Scottish government faces fresh legal action from campaign group For Women Scotland over its prison policy, which the organisation claims directly violates a landmark Supreme Court ruling from seven months ago.
Legal Battle Intensifies
In April, the Supreme Court delivered a significant judgment in a long-running case brought by gender critical campaigners For Women Scotland. The court ruled that for the purposes of the Equality Act, the legal definition of a woman is based on biological sex. This decision has created substantial implications for access to women-only services and spaces across the country.
Now, For Women Scotland is pursuing further legal action against the Scottish government specifically targeting prison policy. The organisation argues that current guidelines allowing some transgender prisoners to be housed according to their chosen gender following risk assessments contravene the Supreme Court's ruling.
Widespread Confusion Persists
Seven months after the landmark judgment, most public bodies, businesses and service providers remain in a state of uncertainty. They are awaiting updated practical guidance from the Equality and Human Rights Commission (EHRC) that will clarify how to implement the ruling in daily operations.
Some companies have taken immediate action following the judgment. Barclays and Virgin Active moved quickly to bar transgender people from using toilets of their lived gender, with Virgin Active facing legal threats this summer. However, most organisations find themselves in limbo, concerned about both the financial costs and practical challenges of providing additional facilities.
Trans advocacy groups report that the ruling has already led to increased incidents of individuals being challenged in toilets and other facilities, effectively outing them to colleagues. Many transgender people are now avoiding public spaces altogether due to what they describe as a 'chilling effect'.
Political Tensions and Delayed Guidance
The government continues to consider the EHRC's final guidance, which was submitted in September and requires approval from equalities minister Bridget Phillipson before parliamentary presentation. Kishwer Falkner, the commission's outgoing chair, has urged ministers to approve the guidance 'as soon as possible'.
Last month, dozens of Labour MPs expressed concerns that new regulations could create chaos for businesses, while many backbenchers worry about the impact on transgender constituents. The Times newspaper recently reported on a leaked copy of the guidance document, suggesting Whitehall figures believe Labour might be deliberately delaying publication to avoid potential backlash.
UK ministers have responded that they will take whatever time necessary to ensure the new code is correct. They await an EHRC assessment of likely costs to businesses, such as expenses related to building gender-neutral toilets, though the commission maintains this assessment is unnecessary since costs relate to the law itself rather than the guidance.
Ongoing Legal Challenges
Beyond the Scottish prison policy case, several other legal actions related to the April judgment are progressing through courts. An employment tribunal involving an NHS Fife nurse who objected to sharing changing facilities with a transgender doctor is expected to rule before Christmas. A similar case brought by Darlington nurses will likely see judgment in the new year.
The Good Law Project has launched a judicial review against the EHRC's interim advice, arguing it was rushed, legally flawed and excludes transgender people from services they've used for years. This case should conclude before year's end, with speculation that Minister Phillipson may be awaiting its outcome as it could influence the new code.
Meanwhile, the UK's first transgender judge, Victoria McCloud, is pursuing a case against the UK in the European Court of Human Rights, challenging the process that led to the Supreme Court's ruling and arguing that her right to a fair trial was undermined because judges didn't hear evidence from transgender individuals or groups.
