Ban on trans inmates in women’s jails would be ‘fundamental denial’, court told

A blanket ban on having transgender prisoners in women’s jails where they do not pose a risk would be a “fundamental denial” of their choice of gender, a court has heard.

The KC acting for the Scottish Government said such a ban would put a “straitjacket” on ministers’ ability to deal with cases flexibly.

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, where a third day of the hearing took place on Thursday.

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

The latest 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 being moved to a male prison.

The Scottish Government’s arguments state a “blanket rule” which means “transgender prisoners can only be placed in the prison according to their biological sex would violate the rights of some prisoners”.

On Thursday, the Court of Session heard from Gerry Moynihan KC, who is representing the Scottish Government.

He said it is right for ministers to take a “case by case” approach on transgender prisoners.

Mr Moynihan said the issue is not a “trivial matter”, citing case law and Article 8 of the European Convention on Human Rights in relation to the rights of trans people to live in their acquired gender.

Some 75% of transgender prisoners are housed in jails according to their biological sex, he argued.

Mr Moynihan said: “Where a transgender prisoner does not pose an Article 8 problem, does not threaten the rights of others – are we to have an absolute rule that says that they must be accommodated in a prison of their sex?

“Why? The sole reason is that they are to be classified as a man. Even though they live their lives as a woman.

“It’s a fundamental denial of their choice of gender. And it’s a fundamental denial driven only by semantics.”

He went on to argue that ministers cannot ignore any risk of suicide which may arise from transgender prisoners being housed in facilities according to their biological sex.

He said ministers “cannot operate a regime” in which they openly abide a risk of suicide.

The case being brought by the campaign group would put a “straight jacket” over ministers’ ability to deal with cases flexibly, he said, leaving them “constrained by an artificial parameter, that they must define a man as a man and a woman as a woman full-stop, without exception”.

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.”

The hearing, before Lady Ross, continues.