Trans prison ban would violate human rights, says Scottish Government
The campaign group For Women Scotland (FWS) is seeking to overturn prison guidance
Banning biological males who identify as transgender from being placed in female prisons would violate their human rights, the Scottish Government will argue in court.
The campaign group For Women Scotland (FWS) has launched a legal challenge seeking to overturn existing prison guidance in Scotland, with a hearing due to begin at the Court of Session on February 3.
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, or who are judged to present a risk.
FWS argues this is unlawful as ministers are statutorily obliged to provide women-only prison accommodation. It previously won a landmark Supreme Court fight against the Scottish Government over the legal definition of a woman under equality law, which judges ruled is based on biological sex.
The issue of trans women in female prisons previously hit the headlines following the case of Isla Bryson, a double rapist formerly known as Adam Graham who was initially remanded to a women's jail in 2023, before being moved to a male facility.
In advance of the latest case, the Government has published its note of argument, which argues the position on prisons put forward by FWS contains “fundamental errors” and the Equality Act 2010 “does not mandate sex segregation”.
It says banning trans women from female prisons would violate the European Convention on Human Rights (ECHR) in respect of Article 8, which covers respect for private life, and Article 14, which covers discrimination.
“A blanket rule of the kind advanced by the petitioner [FWS] that a transgender prisoner can only be placed in the prison according to their biological sex would violate the rights of some prisoners under at least Articles 8 and 14,” the legal document says.
The Government says FWS’s argument also contains a “contradiction”, adding: “Prima facie, on the petitioner’s argument a transman must be held in a female prison, but the Supreme Court judgment contemplates that a transman of masculine appearance may have to be excluded from a female facility.
“Presumably the petitioner supports that analysis but it contradicts the petitioner’s principal argument: biology is not the sole determining factor in such a case.”
It argues ministers “have no power to act incompatibly with Convention rights” and a balance needs to be struck. “The whole purpose of the prison guidance is to inform the conduct of that balancing exercise,” it says.
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The Government says there have been instances of trans people being held in prisons for those of the opposite sex since at least 2006.
“The number of prisoners so detained has been low,” it says. “The placement of those prisoners has not given rise to any significant operational issue in the prisons in which they have been detained.”
It says the existing guidance “is informed by evidence...that there is an increased risk of suicide during the first three months in custody and a known increased risk of suicide for transgender individuals”.
Susan Smith, a co-director of FWS, said it was “depressing, but not unsurprising, that in page after page referencing human rights, the Scottish Government has, apparently, not considered that women are also human and also have rights”
She added: “Article 3 [of the ECHR] protects everyone from torture, inhuman treatment, or degrading punishment, yet women in, or recently released from, prison tell us the same stories of violation of boundaries and physical or mental abuse from the men they are locked up with.”
She said the Equality and Human Rights Commission has intervened in support of FWS’s case.
Conservative MSP Tess White said it “beggars belief that SNP ministers are still arguing that male-bodied criminals can be housed in women’s prisons”.
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