Scotland’s highest civil court has ruled that the Scottish Government’s policy allowing some transgender women to be housed in female prisons is unlawful, in a judgment hailed by campaigners as a major victory for women’s rights and prison safety.
The ruling, delivered by the Court of Session in Edinburgh, found that existing Scottish Prison Service guidance was incompatible with the law because it permitted some prisoners to be accommodated according to gender identity rather than biological sex.
The judicial review was brought by For Women Scotland, the campaign group that successfully challenged the Scottish Government in last year’s landmark Supreme Court case on the definition of a woman under the Equality Act.
Susan Smith, a director of For Women Scotland, described the decision as a “comprehensive victory”.
She 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 rights.
“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.”
Under existing guidance, transgender women could be placed in female prisons if they had not committed offences against women or girls and were not considered to present an unacceptable risk.
However, For Women Scotland argued that the policy was incompatible with the Supreme Court’s ruling that the terms “woman”, “man” and “sex” in the Equality Act refer to biological sex.
In her written judgment, Lady Ross said the law requires prison accommodation to be provided separately for men and women and that the Supreme Court’s decision meant sex segregation in prisons must be based on biological sex.
She stated: “In so far as the Prisons Guidance allows SPS 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.”
Lady Ross concluded that the guidance constituted a misstatement of the law and was therefore unlawful.
The court also rejected arguments that housing transgender women in the male prison estate would breach rights protected under Article 8 of the European Convention on Human Rights, which safeguards private and family life.
While recognising that all prisoners have Article 8 rights, Lady Ross said these did not include a general right to be accommodated in a prison corresponding to a person’s gender identity rather than their biological sex.
She found there was a clear legal justification for maintaining sex-based segregation within prisons.
The judge did note that exceptional circumstances could arise in individual cases, such as serious concerns about a prisoner’s safety or wellbeing. However, she said such situations would need to be assessed on a case-by-case basis and could not form part of a general policy.
The case follows widespread controversy in 2023 when convicted rapist Isla Bryson was initially placed in a women’s prison before being transferred to the male prison estate following public concern.
At the time, Scottish Prison Service guidance generally allowed transgender prisoners to be housed according to the gender in which they were living prior to conviction. Although the policy was later revised, it did not introduce a blanket prohibition on biological males being held within the female prison estate.
Former SNP MP Joanna Cherry KC welcomed the ruling, describing it as another significant victory for For Women Scotland and arguing that sex-based segregation in prisons was entirely lawful.
A spokesman for the Scottish Prison Service said: “We are grateful to Lady Ross for her judgement, which we will carefully consider, at pace, along with the Scottish Government. It would not be appropriate to comment further at this time.”
The judgment is expected to require ministers to revise prison guidance and review placements made under the existing policy, representing the latest legal clarification following the Supreme Court’s landmark ruling on the meaning of sex in equality law.
