'Blanket rule' for trans prisoners would violate rights, ministers to argue

The Scottish government is to argue in court that a "blanket rule" about placing transgender prisoners in jails according to their biological sex "would violate the rights of some prisoners".

The government's guidance for prisons is being challenged by the campaign group For Women Scotland, which says no biologically male inmates should be held in the female estate.

The written arguments for Scottish ministers have now been published, which state that the 2010 Equality Act "does not mandate sex segregation", and that biology is "not the sole determining factor" in which prisons people are housed in.

A three-day hearing at the Court of Session is due to begin on 3 February.

For Women Scotland has brought the case following its successful appeal to the Supreme Court about the definition of a woman in the Equality Act.

The group pointed to the ruling as stating that "a person is either a woman or a man", and that "provisions that refer to protection for women necessarily exclude men".

They said that the Scottish government's prison guidelines would allow "at least some male prisoners" to be housed alongside women, arguing this is unlawful and should be struck down.

However, the Scottish government's arguments contend that the 2010 act is designed for people to make claims of discrimination, and "does not absolutely prohibit deviation from any norm".

It also questions what should be done in the case of trans men - biological females who have transitioned and have a masculine appearance - noting that campaigners would "presumably" support them being excluded from female facilities, thus undermining the argument that biology should be the sole determining factor.

Last week, First Minister John Swinney told MSPs that the government accepted the Supreme Court ruling, but that its assessment was that prisons guidance "does not need to be changed".

He said ministers "must wrestle with complex issues and make difficult decisions which balance and reflect the interests and rights of individuals".

Scottish Conservative equalities spokeswoman Tess White said: "The highest court in the land was clear that the definition of a woman is based on biological sex.

"It is shocking that John Swinney is using taxpayers' money to effectively oppose this principle in court."