A Scottish court has ruled that prison guidance allowing transgender women to be housed in female prisons is unlawful.
In a judgment issued by the Court of Session, Lady Hood found that the Scottish Prison Service’s (SPS) current policy is incompatible with legal requirements governing the separation of male and female prisoners.
The case was brought by campaign group For Women Scotland, which challenged guidance introduced by the SPS in 2023. The policy allowed transgender prisoners to be considered for placement in prisons matching their acquired gender following individual risk assessments.
At the heart of the dispute was whether biological males who identify as women can lawfully be accommodated within Scotland’s female prison estate.
The court found that prison allocation decisions are a public function and must comply with Rule 126 of the Prisons and Young Offenders Institutions (Scotland) Rules 2011, which requires separate accommodation for male and female prisoners. Lady Hood concluded that the rule refers to biological sex and that, following the UK Supreme Court’s ruling earlier this year in the For Women Scotland case, an alternative interpretation was no longer legally sustainable.
In her judgment, Lady Hood said the Scottish prison system operates on the basis of separate male and female estates, reflecting long-established principles intended to protect the safety, privacy and dignity of prisoners. She rejected arguments that the legality of the policy could only be assessed through individual discrimination claims, finding that policies themselves must comply with statutory requirements.
The SPS had argued that a flexible, case-by-case approach was necessary to protect the rights and welfare of transgender prisoners, including concerns about self-harm and suicide risks. Evidence presented to the court showed that most transgender prisoners in Scotland are currently housed according to their biological sex, although some exceptions have been made.
Interventions from both the Scottish Human Rights Commission and the Equality and Human Rights Commission highlighted the wider human rights implications of the case. While neither organisation argued that all transgender prisoners should automatically be housed according to gender identity, both raised concerns about the consequences of blanket policies.
The ruling is expected to require the Scottish Prison Service to revise its guidance and could have wider implications for how public bodies interpret sex-based provisions following the Supreme Court’s landmark decision on the definition of sex under the Equality Act.
Photo: Matthew Ansley
Leave a Reply