Housing trans inmates in women's jails 'unlawful', judge rules

A judge has ruled that it is unlawful for trans women to be housed in the female prison estate, in a blow to the Scottish Government.

Lady Ross published her decision following a petition for judicial review brought by For Women Scotland (FWS), which challenged Holyrood's policy.

The group, which hailed the ruling as a "victory" for vulnerable women prisoners, had challenged the lawfulness of the Scottish Prison Service policy of holding some trans women - who are biological men - in women's prisons.

The case came amid the outcry over trans rapist Isla Bryson - formerly known as Adam Graham.

Bryson was initially sent to Cornton Vale women's prison in Stirling after being found guilty in 2023 of raping two women, before then being moved to a male prison.

Last year, FWS won a Supreme Court case, which saw the UK's highest court make clear that the term "woman" in the Equality Act refers to a biological woman.

In her decision published on Friday, Lady Ross concluded that "in all the circumstances, the prison's guidance is unlawful".

Susan Smith of FWS said the group was "delighted to have won such a comprehensive victory" and argued the group "should never have needed to take this case".

"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," she added.

During hearings in February, Gerry Moynihan KC, for the Scottish Government, told the Court of Session in Edinburgh that it is right for ministers to take a "case-by-case" approach to transgender prisoners.

Mr Moynihan 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.

Yet while Lady Ross accepted that trans prisoners have rights under this article, she said these didn't extend to a right to be accommodated in a prison for the opposite biological sex.

She also acknowledged that there are further obligations to protect life and to not to subject prisoners to inhuman or degrading treatment, respectively established by articles two and three of the convention.

However, she again ruled that there is "no positive obligation, in general terms, based on article two or article three, to accommodate a trans prisoner in a prison for the opposite biological sex".

She added that guidance allowing the prison service to accommodate trans prisoners in prisons for the opposite biological sex was "in conflict with the requirement that prison accommodation be provided separately for men and women".

"That constitutes a misstatement of the law," she added.

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A Scottish Prison Service 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."

The Scottish Government has been contacted for comment.

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