A significant judicial review hearing examining the Scottish Government's controversial policy regarding the placement of transgender prisoners is set to commence on Tuesday at the Court of Session in Edinburgh. The legal challenge, brought by the campaign group For Women Scotland, centres on opposition to the practice of housing trans women within female-only prison facilities across Scotland.
Legal Battle Over Prisoner Placement Policy
The hearing follows a landmark Supreme Court victory for For Women Scotland in April of last year, where judges clarified that within the Equality Act, the term "woman" specifically refers to a biological female. This ruling has formed a crucial foundation for the group's current legal arguments against the Scottish Government's approach to transgender inmate allocation.
Scottish Government's Human Rights Defence
In legal documents submitted ahead of the February hearing, Scottish Government representatives have argued that implementing a "blanket rule" requiring all transgender prisoners to be placed according to their biological sex would constitute a violation of certain prisoners' rights. The government's position maintains that in specific circumstances, placing inmates in prisons designated for the opposite biological sex may be necessary to prevent breaches of the Human Rights Act.
The government's legal submission states: "The placement of those prisoners has not given rise to any significant operational issue in the prisons in which they have been detained." It further outlines that prisoners who have been placed in facilities opposite to their birth sex include those holding gender recognition certificates, individuals who have lived in their acquired gender for decades, and transgender men with masculine appearances.
Individualised Assessment Approach
Importantly, the government papers emphasise that placement decisions are not made "solely on the basis of those personal attributes." Instead, an "individualised assessment" is conducted in accordance with established prison service guidance. This guidance reportedly considers evidence indicating both an elevated risk of suicide during an inmate's initial three months in custody and a "known increased risk of suicide for transgender individuals."
Consequently, the Scottish Government's legal argument expresses a "well-founded concern" that adopting a policy which absolutely prohibits transgender prisoners from ever being held in facilities opposite their biological sex "could give rise to an unacceptable risk of harm."
For Women Scotland's Counter-Arguments
For Women Scotland has presented a starkly contrasting perspective. The group contends that the Scottish Government's arguments heavily emphasise the supposed human rights of male prisoners to access the female estate while allegedly neglecting the rights of female inmates. They reference Article 3 protections against torture and inhuman treatment, arguing that women in Scottish prisons routinely experience "boundary violation and physical or mental abuse from the men they are locked up with."
The campaign group notes with approval that the Equality and Human Rights Commission has intervened in the case to support their position, disagreeing with the government's stance. They also highlight that the Scottish Prison Service currently houses approximately 80% of transgender prisoners in estates corresponding to their biological sex, demonstrating existing capability to manage vulnerable male inmates within the male prison system.
Context of the Isla Bryson Case
This legal challenge occurs against the backdrop of considerable public outcry surrounding the case of trans rapist Isla Bryson, formerly known as Adam Graham. Following conviction for sex attacks on two women in 2023, Bryson was initially placed in Cornton Vale women's prison in Stirling before being transferred to a male facility. This case has intensified debate around the safety implications of transgender prisoner placement policies.
For Women Scotland has questioned the logic behind the government's approach, asking: "The men we know of who are in the female estate have been convicted of brutal crimes, if they have the 'human right' to be locked up with women, why don't the others?" The group has accused Scottish ministers of preferring to "play dangerous games with women's lives and safety" rather than accepting the Supreme Court's previous ruling.
The judicial review hearing represents a critical juncture in the ongoing national conversation about gender identity, prisoner welfare, and the rights of incarcerated women, with potentially far-reaching implications for correctional policy across Scotland.
