Scottish Government Faces Legal Challenge Over Transgender Prisoner Policy
A prominent lawyer has accused the Scottish Government of treating female prisoners as "pawns for political gain" during a landmark judicial review hearing concerning transgender inmate policies. The case, brought by campaign group For Women Scotland (FWS), is being heard at the Court of Session in Edinburgh and represents a significant escalation in the ongoing national debate over women's rights and gender identity protections.
Legal Battle Follows Supreme Court Ruling on Equality Act
The judicial review comes in the wake of FWS's successful Supreme Court case in April 2025, where judges ruled that the term "woman" in the Equality Act specifically refers to biological sex rather than gender identity. This legal precedent forms the foundation of the current challenge against Scottish Prison Service policies that allow some transgender women to be housed within the women's prison estate.
Aidan O'Neill KC, representing For Women Scotland, told the court that the current policy is "just wrong" and questioned why the Scottish Government was defending a position he claims lacks proper legal basis in human rights legislation. "If it's not law, you do not have a legal case, then presumably it's a political calculation," O'Neill argued before Lady Ross, the presiding judge. "What's happening here is that women in prisons are being treated and used by the Scottish Government to be traded as pawns for political gain."
Concerns Over Vulnerable Women and Institutional Contempt
The lawyer described female prisoners as an "incredibly vulnerable cohort of women" who face what he termed an "enforced gaslighting culture" within the prison system. He claimed women risk disciplinary procedures if they question the presence of transgender women in their facilities, creating what he characterized as institutional neglect of women's rights in contrast to what he called "incredible sensitivity" shown toward transgender prisoners.
O'Neill presented Scottish Prison Service statistics revealing that since 2014, 73 transgender-identifying prisoners have been incarcerated in Scotland. Approximately 20 percent of these individuals have been housed in prison estates that do not match their biological sex. Specifically:
- 51 of these prisoners were transgender women
- 14 transgender women were housed on the women's prison estate
- 22 were transgender men, with three housed on the male estate
The lawyer emphasized that the fact 80 percent of transgender prisoners were held in estates matching their biological sex demonstrates that such placement does not conflict with legal rights to have gender identity respected.
Serious Crimes and Proposed Solutions
O'Neill provided examples of transgender women currently housed in women's prisons who he said had committed serious violent offenses including murder, torture, and assault. One case from 2014 involved what a judge described as a "particularly gruesome murder," while another from the same year involved an offender who stabbed a neighbor more than twenty times.
As a potential solution, the lawyer suggested creating a dedicated estate for transgender prisoners to ensure what he called "the preservation of women-only spaces." When questioned by Lady Ross about whether it would be lawful for transgender men to be housed in male prisons, O'Neill clarified that his primary concern remained protecting the integrity of women's prison facilities.
Scottish Government's Defense of Current Policy
In legal arguments published ahead of the hearing, the Scottish Government maintained that requiring transgender prisoners to be placed exclusively according to biological sex would violate some prisoners' rights. Officials expressed "well-founded concern" that adopting such a restrictive policy could create "an unacceptable risk of harm" to certain transgender inmates.
The case continues against the backdrop of public controversy following the Isla Bryson case, where a transgender woman convicted of rape was initially sent to Cornton Vale women's prison in Stirling in 2023 before being transferred to a male facility. This incident sparked national debate about prisoner placement policies and women's safety concerns.
The judicial review before Lady Ross continues as Scotland grapples with balancing transgender rights protections with concerns about preserving single-sex spaces and protecting vulnerable female prisoners.
