The Scottish government has argued that a blanket rule requiring transgender women to be housed in men’s prisons, even when they pose no risk, would be a 'fundamental denial' of their identity. Gerry Moynihan KC, representing the SNP government, told the Court of Session on Thursday that such a policy could violate prisoners’ rights under the European Convention on Human Rights.
Moynihan said that placing a trans inmate in a prison not aligned with their lived gender runs counter to rehabilitation aims. He stressed the importance of individual risk assessments, arguing that an absolute rule based solely on biological sex would ignore mental health and suicide risks.
The case is part of an ongoing legal challenge by For Women Scotland, which argues that current Scottish guidance—housing trans prisoners according to risk—contradicts last April’s Supreme Court ruling that the definition of a woman in equality law refers to biological sex. Moynihan contended that the ruling was 'not a universal proposition' and only applied to the Equality Act.
The Equality and Human Rights Commission (EHRC) intervened, stating the Scottish government should revise its 'outdated' guidance. Meanwhile, the UK government is considering new national guidance on applying the Supreme Court decision to public bodies.
The judicial review comes as the SNP faces pressure over single-sex provision in healthcare. Patient Safety Commissioner Karen Titchener told a Holyrood committee this week of complaints from female patients feeling unsafe, questioning the lack of single-sex wards in mental health settings.
