SNP ministers lose court battle over trans prisoners in female jails

The Court of Session ruled the current prison guidance is “unlawful” and in conflict with the requirement for accommodation to be provided separately for men and women.

The campaign group For Women Scotland (FWS), which launched the legal challenge, hailed it as “a victory for the very vulnerable women in the prison estate”.

It previously won a landmark Supreme Court fight against the Scottish government over the legal definition of a woman under equality law.

The government is now expected to face substantial legal costs. As of April, it had incurred costs of £187, 957 in relation to the prisons case, while FWS said it will also be liable for its costs of more than £200,000.

READ MORE: SNP using women as pawns with Orwellian trans prison rules, court told

Susan Smith of FWS said: “We are delighted to have won such a comprehensive victory in our judicial review on Scottish prison policy.

“All the arguments from the Scottish ministers were comprehensively rejected by the court, not least their claim that housing trans-identified male prisoners in the male estate would breach their Convention [human] rights.

“We hope that, in future, the Scottish government will start to listen to us rather than the lobby groups who drafted these policies and have so egregiously misled MSPs and MPs.

“We should never have needed to take this case and we hope this will be the last time that we are forced to go to law to defend the rights of women. Ultimately, this is a victory for the very vulnerable women in the prison estate.”

The rules had allowed trans people to be placed in a prison matching their gender identity if it was considered safe to do so. This did not include those with a history of violence against women and girls, and who were judged to present a risk.

But FWS argued this breached the rights of vulnerable female inmates, and clashed with the previous Supreme Court ruling.

The issue of trans women in female prisons previously hit the headlines following the case of Isla Bryson, a double rapist formerly known as Adam Graham who was initially remanded to a women's jail in 2023, before being moved to a male facility.

During hearings in January, the Scottish government argued a blanket ban on biological males who identify as trans being placed in female prisons could violate their human rights.

READ MORE: Trans prison ban would violate human rights, says Scottish Government

Gerry Moynihan KC for the Scottish government told the Court of Session it is right for ministers to take a “case-by-case” approach on transgender prisoners.

He said the issue was not a “trivial matter”, citing case law and article eight of the European Convention on Human Rights in relation to the rights of trans people to live in their acquired gender.

Lady Ross however said in her ruling that while trans prisoners have rights under article eight, this does not extend to a right to be accommodated in a prison for the opposite biological sex.

“All prisoners have rights under the European Convention on Human Rights,” she wrote in her ruling.

“Trans prisoners have rights under Article 8, but this does not extend to a right to be accommodated in a prison for the opposite biological sex. Article 8 rights are qualified and there is a justification for maintaining sex segregation in prisons.”

She said it is possible that “in an exceptional individual case, in a situation where there is a threat to life through suicide, it may be necessary to consider an argument that accommodation in a prison for the opposite biological sex is necessary”.

But she added “disapplication or disregard of subordinate legislation cannot form part of a general policy”.

Lady Ross said the statutory scheme in Scotland “requires separate prison accommodation for men and women”, which means “sex segregation in prisons according to biological sex” following the earlier Supreme Court ruling.

“Insofar as the prisons guidance allows SPS [the Scottish Prison Service] to accommodate trans prisoners in prisons for the opposite biological sex, it is in conflict with the requirement that prison accommodation be provided separately for men and women,” she wrote.

“That constitutes a mis-statement of the law.”

Conservative MSP Meghan Gallacher said: “This is a victory for common sense and a humiliating defeat for John Swinney and his SNP government.

“It was outrageous that Swinney wasted taxpayers’ money fighting this case in court after the crystal-clear verdict from the Supreme Court last year.

“That confirmed that gender is based on biological sex. Yet the SNP have failed to implement that ruling a year on, with women still not guaranteed access to single-sex spaces.

“Swinney should have been acting urgently to remove men from the female prison estate, but instead he confirmed how out-of-touch he is with public opinion by forcing women to go to court to defend their rights again.

“This latest decision is another hammer blow for those like Swinney who still back Nicola Sturgeon’s extreme gender-self ID policies.

“Swinney must rule out any further court action trying to defend them and finally implement the Supreme Court’s verdict across Scotland’s public bodies.”

The Scotsman asked the Scottish Prison Service whether trans prisoners will now be moved.

A spokesperson said: “We are grateful to Lady Ross for her judgment, which we will carefully consider, at pace, along with the Scottish Government. It would not be appropriate to comment further at this time.”

First Minister John Swinney said: "We will consider all of these details because there are complex issues that are involved, but at this early stage I acknowledge the outcome of the judgement from Lady Ross and the government will consider its findings.

"We will assess the implications the judgement has on carrying out policy in relation to the handling of prisoners.

"The government will do that work and respond accordingly to the judgement that has been made."