Scotland’s trans prison policy is unlawful finds Court of Session

On Friday, Lady Ross published a decision ruling the guidance unlawful.

The petition for judicial review was brought after the UK Supreme Court ruled in April 2025 that the meaning of ‘sex’, ‘man’, and ‘woman’ in the Equality Act referred to biological sex, and did not extend to transgender people with a gender recognition certificate.

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Under Scottish Prison Service guidance, in some circumstances biological men can be housed in the women’s prison estate.

For Women Scotland contended that the SPS and the Scottish Government have a statutory obligation to provide women-only prison accommodation, as defined in by the Equality Act.

The group contended that the guidance was, therefore, unlawful.

The respondents, the Scottish Ministers and the Lord Advocate, presented two defences.

The first was that the petition was irrelevant as it did not bring forward a specific claim of discrimination or harassment and the second was that it may sometimes be necessary to host transgender prisoners in a prison of the opposite sex to avoid a risk of violating their rights under the European Convention on Human Rights.

Specifically Article 8, the right to respect for private and family life, Article 2, the right to life, and Article 3, the right to freedom from torture and inhuman and degrading treatment were cited.

FWS argued that under rule 126 of the 2011 prison rules, the Scottish Government has a statutory obligation to provide separate accommodation for male and female prisoners.

Given the Supreme Court ruling, they submitted, that would exclude trans prisoners from prison estate occupied by members of the opposite biological sex.

In response, the Scottish Ministers and the Lord Advocate said the decision should be a starting point, but the ratio in that case did not include ECHR rights.

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

There was “no real dispute” that the seasons for sex segregation in prisons are to protect the safety of women and secure the privacy and dignity of both women and men, and at no point did the Scottish Ministers or Lord Advocate argue that a male prisoner, who is not a trans woman, could be admitted to a female prison.

However, it was argued that there are cases in which human rights concerns may make it appropriate to house a trans person in a prison of the opposite sex.

Of particular emphasis was Article 2 of the ECHR in the context of suicide risk.

There is a positive obligation on the state to protect life in custody, and “in truly extreme cases” the law can permit disapplication of regulations to protect Convention rights.

However, Lady Ross found that as the proceedings related to a judicial review of policy, there were no case-specific facts for the court to consider and it was therefore “impossible to conclude, on the basis of evidence, that there would be any breach of any individual trans prisoner’s Article 2 or 3 rights”.

On the issue of whether the petition was relevant, the Scottish Ministers did not seek to have the petition dismissed and accepted that there was a need to determine the lawfulness of the prison guidance.

There was therefore, Lady Ross wrote, “a certain tension in the respondents’ position, since they contended both that the central question of lawfulness could not be properly tested in the abstract, and that the Prisons Guidance was lawful”.

Lady Ross found that trans prisoners have rights under Article 8, but “this does not extend to a right to be accommodated in a prison for the opposite biological sex”, adding that those rights “are qualified and there is a justification for maintaining sex segregation in prisons”.

On Articles 2 and 3 the court found that there are obligations for the SPS, but there is “no positive obligation, in general terms” to accommodate a trans prisoner in a prison for the opposite biological sex.

The court did not accept that putting a trans woman in a male prison would place her at higher risk, because the SPS is “adept at managing safely” vulnerable biological male prisoners.

However, Lady Rose stated “that does not lead to the conclusion that there is no risk”, accepting that while there was a shortage of evidence produced “it may be that trans prisoners are at heightened risk” and that it was proper for the SPS to have suicide prevention policies which “take into account the different vulnerabilities of different parts of the prison population”, including trans prisoners.

Ultimately the court concluded that the “existence of risk” does not necessitate and option, as a matter of policy, to accommodate trans prisoners in the women’s estate, where inmates have their own vulnerabilities in terms of poor mental health and risk of suicide.

While it was acknowledged that “in an exceptional individual case” where there is a threat to life through suicide “it may be necessary to consider an argument that accommodation in a prison for the opposite biological sex is necessary” but whether that could be made compatible with the Equality Act could not be determined in the abstract.

The court held that “in any event, disapplication or disregard of subordinate legislation cannot form part of a general policy”.

Lady Ross also wrote: “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. That constitutes a mis-statement of the law.”

She concluded that “in all the circumstances, the prisons guidance is unlawful”.

Scottish First Minister John Swinney said: “Lady Ross’s judgment has just been given down and it is a very comprehensive judgment, the Government will of course respect the judgment Lady Ross has put forward and consider its implications and we will set out our response in due course.”

Speaking to in Aberdeen, Conservative leader Kemi Badenoch was asked if it is time for the SNP to accept defeat on the issue.

She said: “Absolutely. It is time to draw a line under this. I do not understand why the SNP want to die on this hill of putting men in women’s prisons. It’s extraordinary.”

Mrs Badenoch said it is a “common sense issue”.

She added: “We need to understand what the law is. The Equality Act specifies that sex, as written in the Act, is biological sex, so where there are public services and provisions that need to be made on the basis of that, that’s what the SNP should follow.”