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The Scottish Government has published legal arguments defending its policy on transgender prisoners, asserting that a blanket rule based solely on biological sex would violate inmates' rights. The move comes ahead of a Court of Session hearing in February, where ministers will face a legal challenge from women's rights campaigners.
In papers published online, the government argues that a «blanket rule» stating that a «transgender prisoner can only be placed in the prison according to their biological sex would violate the rights of some prisoners». The legal documents contend that current prison guidance «is not unlawful» and requires an «individualised assessment» «informed by evidence» of each case.
The government cites a «known increased risk of suicide for transgender individuals» and warns of a «well-founded concern that being required to adopt a policy that a transgender prisoner can never be held in a prison for the opposite biological sex could give rise to an unacceptable risk of harm». Legal papers note that transgender prisoners have been held in prisons for the opposite biological sex since at least 2006, though «only a minority of transgender prisoners have been held in prisons of the opposite sex» and the «number of prisoners so detained has been low».
Conservative criticism
Scottish Conservative equalities spokesperson Tess White sharply criticized the government's stance. «It beggars belief that SNP ministers are still arguing that male-bodied criminals can be housed in women's prisons. Even after the Isla Bryson scandal and the Supreme Court ruling, John Swinney is continuing to betray women by doubling down on the Nationalists' reckless gender self-ID policy», she said.
White added: «The highest court in the land was clear that the definition of a woman is based on biological sex. It is shocking that John Swinney is using taxpayer's money to effectively oppose this principle in court. Women's rights to single-sex spaces must be protected. No male-bodied criminal should be housed in a female prison – end of story.»
Background and legal context
The February hearing follows a landmark Supreme Court victory by For Women Scotland in April last year, which ruled that "woman" in the Equality Act refers to a biological woman. The controversy intensified in 2023 when trans rapist Isla Bryson, formerly Adam Graham, was initially sent to Cornton Vale women's prison in Stirling before being moved to a male facility.
The government's legal arguments cite the European Committee for the Prevention of Torture, which considers that «as a matter of principle transgender prisoners should be accommodated in the prison section corresponding to the gender with which they identify». The papers note that while «separate prisons for males and females is the international norm», decisions should be «subject to individual assessment».
Note: This article was created with Artificial Intelligence (AI).
