Scottish Government Defends Transgender Prison Policy Amid Rights Debate
First Minister John Swinney has faced sharp accusations of reinforcing what critics label a "reckless" gender self-identification policy, following his government's legal stance on transgender prisoners. The Scottish Government has submitted written arguments ahead of a Court of Session battle next month, defending its guidance on managing transgender individuals in custody.
Legal Arguments and Rights Claims
In its submission, the government contends that implementing a blanket ban on biological males who identify as women from entering female prisons "would violate the rights of some prisoners." It asserts that the existing policy is "not unlawful," a position that appears to clash with the landmark Supreme Court ruling from April last year, which clarified that sex under the Equality Act refers to biological sex.
Lawyers for the SNP-led administration further argue that enforcing such a ban could lead to potential sex discrimination or harassment cases. This legal move comes just days after Mr Swinney informed Members of the Scottish Parliament that while the Supreme Court ruling "is accepted by the Scottish Government," policies must also align with other legal obligations, including those under the European Convention on Human Rights.
Political Backlash and Criticism
Scottish Conservative equalities spokesman Tess White expressed disbelief, stating, "It beggars belief that SNP ministers are still arguing that male-bodied criminals can be housed in women's prisons." She accused Mr Swinney of "continuing to betray women by doubling down on the Nationalists’ reckless gender self-ID policy."
Ms White emphasised, "The highest court in the land was clear that the definition of a woman is based on biological sex. It is shocking John Swinney is using taxpayers’ money to effectively oppose this principle in court. Women’s rights to single-sex spaces must be protected. No male-bodied criminal should be housed in a female prison."
Notable Cases and Current Prison Population
Among the male-born prisoners currently housed in the women's estate are several high-profile individuals. Alan Baker, who now identifies as Alex Stewart, was convicted of murder in 2013. Richard McCabe, known as Melissa Young, received a murder conviction in 2014. Additionally, Peter Laing, who goes by the name Paris Green, was convicted of murder and torture in 2013.
Upcoming Court Hearing and Legal Details
The government published its "note of argument" in preparation for a Court of Session hearing scheduled for February 3. This hearing addresses a petition by For Women Scotland for a judicial review of the Scottish Prison Service's policy on managing transgender people in custody.
The note states, "Examination of the supposed underlying unlawfulness, and questions of competence, necessarily require consideration of the duty of the Respondents under section 57(2) of the Scotland Act 1998 to act compatibly with Convention rights... A blanket rule of the kind advanced by the petitioner that a transgender prisoner can only be placed in the prison according to their biological sex would violate the rights of some prisoners under at least Articles 8 and 14."
It further argues that "biology is not the sole determining factor" and maintains that the current prisons guidance remains lawful.
Opposition from Advocacy Groups
In its own legal submission, For Women Scotland, led by Susan Smith and Marion Calder—who previously defeated the Scottish Government at the Supreme Court—countered, "This is in fact a very simple and straightforward case which admits only of one answer. The Scottish Ministers are obliged... to provide women-only accommodation in a women-only prison estate."
The ongoing dispute highlights deep divisions over gender identity policies, prisoner rights, and the interpretation of legal frameworks in Scotland, setting the stage for a significant judicial review next month.
