SNP's wrong-headed approach to trans women in female prisons shows a lack of common sense

On the one hand, she noted, the First Minister and Scottish Government had stated clearly on multiple occasions that they fully accepted the Supreme Court ruling that the Equality Act 2010 refers to biological sex. Indeed they were working to implement it.

On the other hand, newspapers had reported that the Scottish Government wrote to the UK Government’s Advocate General to explore the legal arguments against the Supreme Court ruling, including a declaration of incompatibility on human rights grounds.

It is little wonder that the SNP MSP was confused as the statements made in the chamber were at complete odds with the actions taken in secret by the SNP government.

The campaign group For Women Scotland, which has launched fresh legal action against the Scottish Government over its failure to change prison policy in light of the ruling, went further, calling on both Health Secretary Neil Gray and Justice Secretary Angela Constance to resign.

The Scottish Government’s defence appears to be that it is also confused. John Swinney later told journalists that the Supreme Court ruling is “a complex and comprehensive ruling” and that he was concerned that the Scottish Government remained compatible with the European Convention of Human Rights.

In fact, policies on transgender prisoners vary across European countries, with Italy creating separate wings for transgender prisoners in 2023, where they are kept separate from male prisoners but also biological women. Other countries have no formal policy but decide on a case-by-case basis.

One thing, though is clear – the Scottish Government has brought this quandary on itself. John Swinney refused to meet For Women Scotland before they launched their legal action and now we the taxpayer are being used by the SNP to defend the case in the courts.

But it was the Scottish Government’s lack of common sense which led to this debate, after Isla Bryson, a male convicted rapist, was housed in a women’s prison – and more recently murderer Paris Green, who has since been convicted of a crime against a female prison officer.

It might be inconvenient to the First Minister, but this at heart is a moral dilemma rather than a legal quibble.

Without any changes to our overcrowded prison system, the First Minister faces a trade-off between protecting trans people, who are undoubtedly vulnerable to attacks by violent male prisoners but can include convicted sex offenders, and protecting biological women, who are vulnerable to both.

The Scottish Government appears to be incapable of rising to the challenge of keeping women safe in our prisons – there is an opportunity to think outside the box and learn from countries such as Italy.

The irony is that even compared to other vulnerable groups such as elderly prisoners, the numbers are tiny – women make up just 6.4 percent of Scotland’s prison population, transgender prisoners even less.

Rather than hoping the lawyers will bail him out, the First Minister should get on and make our justice system work without having to defend such a wrong-headed approach in the courts.

Jackie Baillie is MSP for Dumbarton, Scottish Labour’s deputy leader and her party’s spokesperson for health