Blanket ruling on trans prisoners would ‘violate rights’ – Scottish Government

A blanket ruling that transgender offenders can only be placed in a prison that matches their sex at birth risks violating the rights of some inmates, the Scottish Government insists.

Ministers published legal arguments on the issue ahead of a clash with women’s rights campaigners, who are opposed to trans women being placed in female-only jails.

For Women Scotland is taking the Scottish Government back to court on the issue, after winning a landmark case against Holyrood ministers in 2025, mounting a legal challenge to the policy of allowing transgender women to be placed in the female prison estate.

The group won a Supreme Court case in April last year, with judges at the UK’s highest court making clear that the term “woman” in the Equality Act refers to a biological woman.

In papers published ahead of February’s Court of Session hearing, the Scottish Government argued 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”.

It added that placing prisoners in a prison for those of the opposite biological sex may be required to prevent a violation of the Human Rights Act.

The papers, published online by the Scottish Government as a result of the public interest in the case, stressed that the current prison guidance setting out where inmates should be housed “is not unlawful”.

The case comes in the wake of the outcry over trans rapist Isla Bryson – formerly known as Adam Graham – who was initially sent to the Cornton Vale women’s prison in Stirling after being found guilty of sex attacks on two women in 2023, before then being moved to a male prison.

However the note of argument produced for the Scottish Government ahead of next month’s court hearing stressed there “have been instances of transgender prisoners being held in prisons for those of the opposite biological sex since, at latest, 2006”.

It added that “only a minority of transgender prisoners have been held in prisons of the opposite sex” and that the “number of prisoners so detained has been low”.

However the legal arguments noted: “The placement of those prisoners has not given rise to any significant operational issue in the prisons in which they have been detained.”

It stated that the types of prisoner who have been placed in a prison for the sex opposite to that which they were born into included inmates with a gender recognition certificate, those who have lived in their acquired gender “for decades” and a “transman of masculine appearance”.

However offenders are not placed in a prison “solely on the basis of those personal attributes”, the paper said, adding that an “individualised assessment” is carried out in line with prisons guidance.

This guidance, it added, was “informed by evidence” that there is both an increased risk of suicide in an inmate’s first three months in custody, and also a “known increased risk of suicide for transgender individuals”.

As such the legal argument stated that the Scottish Government has 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”.

It added that while “separate prisons for males and females is the international norm” it said this was “subject to individual assessment”.

And it noted: “The European Committee for the Prevention of Torture considers that as a matter of principle transgender prisoners should be accommodated in the prison section corresponding to the gender with which they identify.”

But Scottish Conservative equalities spokesperson Tess White said: “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.”

Ms White insisted: “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.”

For Women Scotland said: “The Scottish Government’s argument makes a great deal about the supposed human right of male prisoners to be placed in the female estate but, apparently, they have not considered that women also have rights.

“Article 3 protects everyone from torture, inhuman treatment, or degrading punishment, yet women in Scottish prisons are routinely subject to boundary violation and physical or mental abuse from the men they are locked up with.

“We are pleased, however, that the Equality and Human Rights Commission does not agree with the Government’s position and that they have intervened in support of our case.

“The Scottish Prison Service manage many vulnerable men in prison and 80% of transgender prisoners are housed in an estate which corresponds to their biological sex.

“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?

“Rather than admit they were wrong and accept the Supreme Court ruling, Scottish ministers prefer to play dangerous games with women’s lives and safety.”