Hearing on transgender prisoners to start in Edinburgh

A legal challenge against the Scottish Government’s policy on transgender prisoners will commence on Tuesday.

The judicial review hearing begins at the Court of Session in Edinburgh and will hear from For Women Scotland, which is opposed to trans women being placed in female-only prisons.

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 case comes in the wake of the outcry over trans rapist Isla Bryson – formerly known as Adam Graham – who was initially sent to 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.

The Scottish Government’s legal arguments said: “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”.

But For Women Scotland previously 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 group added: “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.”