Trans prison policy 'could see men request move to nicer women's jails'

Janys Scott KC, representing the Equality and Human Rights Commission (EHRC), said the existing guidance undermines single-sex provision under equality law.

Current rules allow trans people to be placed in a prison matching their gender identity if it is considered safe to do so. This does not include those with a history of violence against women and girls, and who are judged to present a risk.

But the campaign group For Women Scotland has launched a legal challenge against the Scottish Government at the Court of Session in Edinburgh seeking to overturn this guidance, arguing it breaches the rights of vulnerable female inmates.

It previously won a landmark Supreme Court fight against Scottish ministers over the legal definition of a woman under equality law, which judges ruled is based on biological sex.

READ MORE: 'We're going to keep fighting': How For Women Scotland won its Supreme Court battle - and what comes next

The EHRC has intervened in the latest case as a third party. Ms Scott, representing the watchdog, said its submission was not designed to favour any party.

However, she argued placing biological males who identify as trans in female prisons undermines single-sex provisions.

“Placing a trans woman in women’s prison accommodation makes it difficult to sustain an Equality Act justification for separate accommodation for female prisoners,” she told the court.

She said: “If biological men are admitted to a service alongside women, then it would be a joint service”, adding: “You would end up with a mixed-sex facility.”

Ms Scott said excluding some men but not others also risks opening up “difficulties with direct discrimination”.

She said: “If one pursues the guidance and starts putting biological men into the female estate and ends up with a mixed-sex facility, we then get to the situation where, for example - and this is just an example, a potential hypothetical example - a man could say, ‘I would like to be in that prison because it’s near to my family’.

“And they can’t be told, ‘Well, you can’t be in that prison because it’s a female prison’, because it’s become mixed-sex through the introduction of biological males through the policy which is being exercised by the Scottish government.

“Or you could simply have a man who says, ‘Look, the new women’s facility in Stirling looks really lovely, it would really suit me, why can’t I go there?’ And you can’t say, ‘Well, because you’re a man.’ That’s the difficulty that, with great respect, the prison service is getting itself into if it continues to operate its current guidance.”

Ms Scott said the Scottish Government and the prison service “have got themselves into a position of some difficult in terms of the equality legislation”.

Earlier, Kenny McBrearty KC, representing the Scottish Human Rights Commission (SHRC), which has also intervened in the case, argued a complete ban on housing trans prisoners on the female estate could breach their human rights.

He also rejected the idea that the “mere presence of any trans woman on the female estate automatically represents an unlawful interference with female prisoners’ Convention [human] rights”.

He said “a great deal” may depend on the particular circumstances.

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

Mr McBrearty said there is no “positive obligation” to place trans inmates in either part of the prison estate under human rights law.

But he told the court: “Even though there may not be a positive obligation to place a trans prisoner in one estate or the other, in my submission if the decision is made to do so on a ‘no exception’ basis - in other words, a policy which places them in the estate, for example, of their biological birth without exception - then it does give rise to the potential for a violation of the negative obligation of a particular right holder, whether it be the female prisoners or trans prisoners.”

He added: “If one places a trans prisoner in the female estate, there is every prospect of a disproportionate and unjustified interference with a woman prisoner’s Article 8 rights [privacy], and potentially Article 2 [right to life] and 3 [freedom from torture and inhuman or degrading treatment] as well, the risk of physical, psychological harm, affront to dignity and so on, on an individualised basis.

“And equally, flip it round, and I say that in some cases, the placement of a trans prisoner in an estate conformed to their biological sex may lead to a breach of their rights, and again, may depend upon all of the facts and circumstances in the case - that particular prisoner, how long they have lived in their acquired gender, so on and so forth.”

He said the SHRC “would see nothing in principle wrong with an assessment which involved taking account of the rights of all of those concerned, not just trans prisons, but women, female staff, taking account of the different potential scenarios and different facts”.

However, he said this was not an endorsement of the current guidance, which he said was not clear enough about which human rights were engaged.

"There is a concern that it could, as currently framed, bring about results which would not be human rights compliant,” Mr McBrearty added.

He also stressed his submission only addressed human rights law, and not the Equality Act.

The Scottish Gvernment began its defence of the policy on Wednesday afternoon, and is expected to set out its case more substantively on Thursday.

It argues banning biological males who identify as trans from being placed in female prisons could violate their human rights, and says the Equality Act 2010 “does not mandate sex segregation”.

Gerry Moynihan KC, representing the government, said there are “layers of sophistication” missing from the case put forward by FWS.

The hearing, before Lady Ross, continues.