THE Scottish Government has confirmed it will not appeal a judge’s decision ruling that it is unlawful for trans women to be housed in the female prison estate.
On Friday, Lady Ross made the decision following the petition for judicial review brought by For Women Scotland (FWS), which challenged the Scottish Government’s policy on the treatment of transgender prisoners.
The group had challenged the lawfulness of the Scottish Prison Service (SPS) policy of holding some trans women in women’s prisons. The SPS has taken an “individualised” approach to the housing of trans prisoners, who make up a small minority of the prison population.
It came after FWS won a Supreme Court case in April last year, which saw judges at the UK’s highest court rule the term “woman” in the Equality Act refers to a biological woman.
Lady Ross ruled that the prison's guidance was “unlawful”.
Justice Secretary, Neil Gray, confirmed on Tuesday that the Scottish Government will not appeal Lady Ross’s decision.
He said: “Following careful consideration of Lady Ross’s judgment, we accept the ruling and have decided not to appeal.
“This case involved important considerations of Ministers' legal obligations as well as the serious practical implications arising from the issues before the court, including the risk of suicide recognised in the judgment.”
Gray added: “The Scottish Government frequently has to make difficult decisions which balance the different interests and rights of individuals, often in complex situations, and this was one such situation.
“The focus now moves to implementing the law, as clarified by the court, maintaining a clear focus on the safety, wellbeing and rights of all those living and working within Scotland’s prisons. The Scottish Prison Service withdrew their Transgender Policy yesterday, and work is underway to implement transfers of prisoners today.
“The safety, wellbeing and rights of all those living and working within Scotland’s prisons and the welfare of affected individuals will be the primary consideration and operational changes will be taken forward carefully, lawfully and in a managed way.”
During hearings in February, Gerry Moynihan KC for the Scottish Government told the Court of Session in Edinburgh it is right for ministers to take a “case-by-case” approach on transgender prisoners.
Moynihan said the issue was not a “trivial matter”, citing case law and article eight of the European Convention on Human Rights (ECHR) in relation to the rights of trans people to live in their acquired gender.
Lady Ross, however, said in her ruling that while trans prisoners have rights under article eight, this does not extend to a right to be accommodated in a prison for the "opposite biological sex".
Article eight rights are qualified and there is a justification for maintaining sex segregation in prisons, she said.
Lady Ross also said that while there are obligations in terms of article two to protect life and article three not to subject prisoners to inhuman or degrading treatment, there is “no positive obligation, in general terms, based on article two or article three, to accommodate a trans prisoner in a prison for the opposite biological sex”.
Lady Ross also wrote: “Insofar as the prisons guidance allows SPS to accommodate trans prisoners in prisons for the opposite biological sex, it is in conflict with the requirement that prison accommodation be provided separately for men and women. That constitutes a mis-statement of the law.”
She concluded that “in all the circumstances, the prisons guidance is unlawful”.
FWS welcomed the “comprehensive victory”, with Susan Smith adding: “All the arguments from the Scottish ministers were comprehensively rejected by the court, not least their claim that housing trans-identified male prisoners in the male estate would breach their convention rights.
“We hope that, in future, the Scottish Government will start to listen to us rather than the lobby groups who drafted these policies and have so egregiously misled MSPs and MPs.”
