Women's Rights 'Traded as Pawns' in Scottish Transgender Prisoner Policy Challenge
A court has been told that women's rights are being 'traded as pawns for political gain' by nationalist politicians during a landmark legal challenge to the Scottish Government's policy on transgender prisoners. The claim was made at the start of a judicial review brought by the campaign group For Women Scotland (FWS), which is being heard at the Court of Session in Edinburgh.
Policy Rooted in 'Ideological Position'
Aiden O’Neill KC, acting for FWS, argued that despite a landmark ruling establishing that sex is biological, biological men are still being housed in the female prison estate. He described the Scottish Government's policy as 'rooted in an ideological position' which he dubbed 'Stonewall law'. This, he said, effectively means that 'it is enough for a man to say that they are a woman for them to be treated for all purposes as a woman'.
Mr O’Neill told Lady Ross that the government's argument had no 'tethering in reality' to European case law, and their submission was a 'slight of hand intended to distract from that fundamental failure'. He questioned the motivation behind defending the policy, suggesting it might be a political calculation rather than a legally sound position.
Safety and Wellbeing Concerns
The packed courtroom heard that some female-identifying transgender inmates pose a physical safety risk to women, while all such inmates threaten their mental wellbeing. Mr O’Neill highlighted that one in five of all prisoners who have transitioned to female in Scotland are housed in the women's estate. He asked pointedly: 'Why is it that women have to bear the risk?' and 'Why is it that women have to bear the cost?'
He proposed an alternative approach, suggesting the Scottish Prison Service could create a separate estate for those identifying as transgender, allowing them to live out their chosen gender identity without compromising women's safety.
Legal Context and Government Position
This judicial review follows For Women Scotland's landmark victory against the Scottish Government at the UK Supreme Court last year, a decision that many have accused the SNP of dragging its feet to implement. The latest figures from the Scottish Prison Service, dating back to June 2025, recorded a total of 19 transgender inmates.
In their written arguments, the Scottish Government's lawyers stated that the Equality Act 'does not mandate sex segregation' and 'does not absolutely prohibit deviation from any norm'. They argued that a blanket rule placing transgender prisoners only in prisons matching their biological sex would violate human rights.
Broader Implications
Mr O’Neill drew parallels with George Orwell's 'Animal Farm', suggesting the policy creates a situation where 'Women good, but men identifying as women are better' or 'All women are equal but men identifying as women are more equal than others'. He criticized what he called 'institutional neglect of and contempt for women's rights'.
The hearing, which is expected to last three days, continues with the Scottish Government's lawyers yet to make their oral submission. The case has sparked significant debate about the balance between transgender rights and women's safety in prison settings, with implications that extend beyond the Scottish justice system to broader questions of equality and human rights legislation.
