No automatic breach of rights from trans women in female prisons, court told

There is no automatic breach of female inmates’ human rights by the presence of trans women on the female prison estate, a Scottish human rights body has told a court.

A lawyer for the Scottish Human Rights Commission (SHRC) said that much depends on the “particular circumstances” of each case.

The campaign group For Women Scotland (FWS) is challenging the current Scottish Prison Service (SPS) policy of holding some trans women in the women’s prison estate.

The petition for a judicial review of the policy is being heard at the Court of Session in Edinburgh.

As arguments continued on Wednesday, FWS’s legal team set out why it wants the current SPS guidance document to be set aside.

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.

The Scottish Government has previously argued 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”.

On Wednesday, Kenny McBrearty KC spoke on behalf of the Scottish Human Rights Commission (SHRC), which has intervened in the case.

He stressed the independence of the SHRC and said it was not “in the pocket” of either FWS or the government.

The human rights body has said its intervention is not in support or opposition to either side.

Mr McBrearty KC said that according to human rights law there is no “positive obligation” to place trans prisoners in either part of the prison estate.

He said: “I would resist the notion that there is a positive obligation to place all trans prisoners within the estate that conforms with their biological sex  – having regard to the article eight rights of women prisoners.”

He said the suggestion that the “mere presence” of a trans woman on the female estate “automatically represents an unlawful interference with female prisoners’ convention rights should be rejected”.

The KC added: “The simple point is that a great deal may depend on the particular circumstances…

“In my submission, it is going a very long way to say there will be a breach of article eight which will arise simply from the presence of any trans prisoner.”

Earlier on Wednesday, Tony Convery, advocate for FWS, discussed the current SPS guidance document on the management of transgender prisoners.

He said the document is “materially misdirecting” SPS staff, adding: “They are led to believe that sometimes biological men can be accommodated in the estate for biological women…

“For the reasons we set out yesterday, we believe this is unlawful.”