Scottish Court Rules Against Housing Trans Prisoners by Gender Identity
Scotland's highest civil court has once again sided with campaign group For Women Scotland, ruling that prison segregation should be based on biological sex.
Women's rights groups protest outside the Scottish Parliament over transgender prisoners they perceive as male, being housed in women's prisons. Photo: Ken Jack/Getty Images
|
Scotland has begun moving male offenders out of women's prisons, after the country's highest civil court ruled that the policy permitting their placement there was unlawful.
The Scottish government confirmed that it had accepted a 19 June ruling by Lady Ross at the Court of Session, which held that guidance issued by the Scottish Prison Service (SPS) allowing some transgender prisoners to be held in prisons for the opposite sex was a “mis-statement of the law”.
The policy had been under scrutiny since 2023, when transgender rapist Isla Bryson, formerly known as Adam Bryson, was placed in Cornton Vale women's prison in Stirling, Scotland, prompting public outcry and a subsequent transfer.
The latest decision from the country’s highest civil court comes in the wake of last year’s UK Supreme Court decision on the definition of “man”, “woman” and “sex” in the 2010 Equality Act.
The Supreme Court determined that the terms referred to biological sex.
The Court of Session applied that precedent in this case, holding that sex segregation in Scotland's prisons is lawful. Citing several pieces of legislation, it found that the statutory scheme requires separate prison accommodation for men and women, and that such segregation is lawful only when based on biological sex.
“Insofar 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”, the court document reads, adding that it “constitutes a mis-statement of the law”.
The Scottish government confirmed this week that it would not appeal the decision. Justice Secretary Neil Gray said that the government often has to make “difficult” decisions, balancing the different interests and rights of people in complex situations.
He said that “this was one such situation”.
Gray said that the SPS withdrew its Transgender Policy this week and that work is under way to transfer prisoners to jails in accordance with their sex.
“The safety, wellbeing and rights of all those living and working within Scotland’s prisons and the welfare of affected individuals will be the primary consideration and operational changes will be taken forward carefully, lawfully and in a managed way”, the justice secretary said.
For Women Scotland (FWS), the campaign group behind both the latest successful challenge and last year’s Supreme Court appeal, said that it was “horrified” that the SPS thought the policy was “morally justified, let alone lawful”.
The campaigners said that they were pleased that the government “accepted the inevitable” and is moving men out of female prisons.
FWS said that the government must now reflect on the “corrosive effect funded lobbyists have had on single-sex provision”, including Scottish Trans, the Equality Network and Stonewall, as well as diversity, equity and inclusion (DEI) consultants “who operate with no understanding of law”.
Lobby groups and activists have cost taxpayers millions, the group said, “yet the Government continues to pay them to pump out unlawful guidance to organisations like the NHS”.
FWS also took issue with the statement issued by the justice secretary, which it said focused on the men who are to be moved without making reference to the women who have suffered as a result of the policy and who “deserve a fulsome apology and an acknowledgement of the harm and trauma they suffered”.
The case has also drawn comment from outside the campaign itself. Commenting on the outcome of the court case, author and prominent gender critical voice JK Rowling said that it was a “comprehensive win for women”.
“Will the First Minister apologise for the unlawful treatment imposed on female prisoners by his government”, she asked on social media platform X.
The underlying question of how to house transgender-identifying prisoners is not unique to Scotland, with similar debates playing out in other jurisdictions.
Digital outlet Reduxx reported this week that a class-action lawsuit in the United States, brought against the Oregon Department of Corrections (ODOC) and demanding that trans-identifying men be held in female prisons, was initiated by a pedophile, a rapist and a domestic abuser who murdered his girlfriend.
The lawsuit has already had a tangible effect on policy. According to Reduxx, a federal judge issued a far-reaching injunction at the end of April ordering the ODOC to review its policies and house trans-identified males on the basis of their “gender identity”.
The ODOC was further instructed to conduct individualized assessments for all trans-identified males in custody.
While the men were initially anonymized as victims in the lawsuit, the Reduxx investigation into their backgrounds revealed an extensive criminal history in each case.
Welcome to the comments section of the Štandard daily. Please take note of our guidelines, comments are moderated by us. You can contact the moderators at support@statement.com.
Participate in the discussion
Comments are available to subscribers only. If you'd like to join the discussion, choose a subscription starting at €6.72 per month.
All comments 0
Register
Comments are available to registered users only. If you'd like to join the discussion, register here.
