A JUDGE has ordered that the Scottish Government’s guidance on transgender prisoners will now be quashed.
In June, Judge Lady Ross ruled the prison guidance, which saw inmates placed in custody in line with their acquired gender, was “unlawful”.
For Women Scotland (FWS) took the Scottish Government to court over the policy, accusing ministers of failing to abide by the ruling of the Supreme Court in April last year.
The UK’s highest court ruled that under the Equality Act 2010, a woman is defined by biological sex, not gender. It led the Equality and Human Rights Commission (EHRC) to issue guidance for service providers that banned transgender women from using female facilities and transgender men from using male facilities.
A hearing was held at the Court of Session on Thursday for a hearing used to determine the wording of the final order issued by the court, an interlocutor.
Gerry Moynihan KC, acting for Scottish ministers, argued during submissions that the government had already taken action in relation to Lady Ross’s findings and had stopped using the guidance, The Times reports.
“What I should indicate is that my lady’s judgment was published on Friday, June 19,” Moynihan told the court.
“The guidance was withdrawn on Monday, June 22 and prisoners were moved on the 23rd. So this is not a situation where there was not any uncertainty on the part of the ministers – the decision was implemented as quickly as possibly.”
Aidan O’Neill KC, acting for FWS, said the final order issued by the court should not only contain a statement setting out the unlawfulness of the guidance but also a formal requirement to quash the guidance and not allow it to be used again.
Moynihan argued against this being included in the order as ministers had stopped using the guidance and implemented the ruling in their policy making.
O’Neill said in response: “One doesn’t leave something hanging because they’ve decided to pull it on their own volition. So it is actually important that the interlocutor ties up all loose ends in terms of reduction.”
Lady Ross told the court that the interlocutor would have an order stating the prison guidance was unlawful and that applying the guidance in relation to prisoner accommodation would outwith the powers of the Scottish Government as it conflicts with UK law relating to equal opportunities.
She added that the draft order would also contain an order reducing the guidance, which means it will be quashed.
“What I propose to do is to ask the clerk of court to circulate my draft interlocutor so that everybody has the opportunity to double check and come back with any minor points of correction before it’s issued,” Lady Ross said.
A spokeswoman for FWS told The Times: “We felt it was important the guidance was quashed so that fresh policies start from first principles and take into account the full implication of this ruling as well as that of the Supreme Court. We are pleased that there is no chance that the old guidance can sneak back in any guise.”
After Lady Ross’s initial ruling, transgender prisoners were placed in accommodation according to their biological sex.
The Scottish Government confirmed at the time it would not appeal the legal ruling.
Prior to that, the Scottish Prison Service (SPS) was said to have housed some trans inmates in the female prison estate, if they were not believed to pose a threat to women prisoners.
At the time, First Minister John Swinney said that legal arguments over where trans prisoners should be housed had involved a “complicated interaction” of the Equality Act and the European Convention on Human Rights.
“Those issues are intensely complex, which is why this issue has been resolved by the Court of Session,” he said.
But Swinney added when the issue was considered by Cabinet following the ruling, ministers had concluded “that we should not appeal this judgment”.
The First Minister added: “The Scottish Prison Service is now taking practical steps to implement the consequences of that judgment.”
