Watchdogs raise concerns over transgender prisoners

Two equalities watchdogs have criticised the Scottish government's policy for housing transgender prisoners.

The Scottish Prison Service (SPS) uses a system of individual risk assessments, but a campaign group has challenged this in court saying that only people born biologically female should be in the women's estate.

The Scottish government is defending the policy and says a blanket ban on trans prisoners in the female estate would violate their rights.

Two watchdogs have intervened in the case, with the Equalities and Human Rights Commission (EHRC) arguing that the prisons guidance does not accord with the Equality Act, the UK's main anti-discrimination law.

And the Scottish Human Rights Commission (SHRC) argued that the policy is not clear enough and could lead to results which are not compliant with human rights.

The case between the government and campaign group For Women Scotland is being heard before Lady Ross at the Court of Session in Edinburgh.

It concerns SPS guidance for the housing of transgender inmates which came into force in February 2024.

The guidance assesses prisoners on a case by case basis using a system that aims to keep anyone who poses a risk to women out of the female estate – but does not include a blanket rule against transgender prisoners being sent there.

On the second day of the hearing, the SHRC said in principle it had no difficulty with an individualised approach - but warned that the existing policy was not clear enough.

The commission said there was not enough specific reference to the rights of women and female prison officers as well as those of transgender inmates.

The SHRC said it was critical that any policy should clearly identify whose rights were engaged and how they were to be balanced in a transparent fashion.

Kenny McBrearty KC said it was not clear to the group that "current policy meets those reasonable expectations".

He said there was in principle no difficulty with an individualised approach, but that the version currently used by prisons did not directly refer to the human rights of female prisoners or staff.

The KC told the court it also contained only a generic reference to the rights of trans prisoners.

McBrearty said "one would have hoped" the policy would have contained specific guidance about how go about balancing the rights of different groups "to minimise the prospect of anyone taking a wrong turn".

He added: "There is a concern that it could, as currently framed, bring about results which would not be human rights compliant."

Janys Scott KC, counsel for the EHRC, told the court that the Scottish government should urgently update its guidance relating to trans people in prisons.

She said last year's Supreme Court decision - that sex was defined by biological sex for the purpose of the 2010 Equality Act - ensured that current Scottish government policy did not accord with the act.

Scott told the court that the SPS and Scottish ministers had "got themselves into a position of some difficulty in terms of the equality legislation."

As a result, she said, updated guidance and changes to public facilities were required in tandem.

The advocate told the court that it should be possible to accommodate men, women and trans people in the same prison providing they were separately accommodated.

Scott also warned that the current policy ran the risk of discriminating against the male population.

She said if biological men were admitted to a service alongside women this would be a joint service, a mixed sex service.

Scott added if some men were excluded but not others then the SPS might have a problem with discrimination.

The Scottish government began its defence of policy this afternoon, having insisted that its position was based on adhering to the ECHR.

The latest figures from the SPS - dating to June 2025 - recorded a total of 19 transgender inmates.

That amounts to about 0.2% of the prison population of more than 8,000 people - 96% of whom are male.

The SPS implemented new guidance in February 2024 following a row over the case of Isla Bryson, a double rapist who was initially housed in the female estate having decided to transition while standing trial.

For Women Scotland contends that this guidance is not compatible with the Supreme Court ruling in 2025 which said sex should be defined in terms of biology in the Equality Act, the UK's main anti-discrimination law.

The group's written argument quotes the ruling as saying that "a person is either a woman or a man…provisions that refer to protection for women necessarily exclude men".

The Scottish government meanwhile argues that the Equality Act was designed to give people a basis on which to make a claim of discrimination.

Its written arguments state that the Act "does not mandate sex segregation", and "does not absolutely prohibit deviation from any norm".