Suicide risk if trans prisoners are put in jails based on sex at birth, court told

Requiring transgender prisoners to be held in jails matching their sex at birth would breach their human rights and create an unacceptable risk of suicide, a court has been told.

Campaign group For Women Scotland is challenging Scottish government guidance for prisons, saying only those born biologically female should be held in the women's estate.

Lawyers for the government argue the current system, based on individual risk assessments, offered necessary flexibility.

They told the Court of Session in Edinburgh a strict rule of housing all trans prisoners in jails matching their biological sex would put a "straitjacket" on efforts to keep inmates safe and rehabilitate them.

The case follows a Supreme Court ruling on the definition of a woman in equalities law in April last year.

The Scottish government insists it respects that judgement - but said it did not override the need to uphold the European Convention on Human Rights (ECHR).

The Scottish Prison Service (SPS) uses a system of individual risk assessments which aims to keep anyone who poses a danger to women out of the female estate.

However, it does allow for circumstances where trans women - born biologically male - could be housed alongside women if they are deemed not to pose an unacceptable risk to them.

For Women Scotland argues the guidance flies in the face of last year's Supreme Court ruling - which found that sex should be defined in terms of biology for the purposes of the Equality Act, the UK's main anti-discrimination law.

The group lodged a legal challenge saying that only those born biologically female should be held in the women's prison estate.

On Tuesday, the group's KC Aidan O'Neill described the prisons policy as "Orwellian" and said it was "based on institutional neglect of and contempt for women's rights".

The Scottish government's KC, Gerry Moynihan, said the ECHR meant transgender people had the right to live their lives in their acquired gender.

He added there had long been recognition in the UK that this included the right to be held in prisons aligning with that.

Moynihan said separate prison estates existed because men and women are seen as having different needs and vulnerabilities - particularly in terms of rehabilitation.

He said trans women also had vulnerabilities and needs, and the government's judgement was they were best dealt with in the female estate "assuming they don't pose risks to others".

He said this offered them "protection against mental health difficulties and the route to rehabilitation," noting that a "trans woman will return to the community as a trans woman".

He said the government had to make "very complex, difficult judgements" around prisons policy and ministers could not run the risk of an increased risk of suicide among trans prisoners.

Moynihan said: "Creating the risk of suicide of one prisoner, let alone a number, is not capable of being collateral damage. It is wholly unacceptable."

He added: "What is being asked in this case is that they be put in a straitjacket.

"That their best prison management judgements are constrained by an artificial parameter, that they must define a man as a man and a woman as a woman full stop, without exceptions.

"Ministers are here to protect the flexibility because that is what is judged to be necessary to achieve the objectives of managing prisoners safely and in the public interest, rehabilitating them to the best of their ability."

On Wednesday, the court heard from two equalities groups which raised different issues with the policy.

The Equalities and Human Rights Commission said the prisons guidance did not accord with the Equality Act, the UK-wide anti-discrimination law it looks after.

It said the rules would effectively create mixed-sex prisons rather than separate male and female estates.

It also suggested there could be a management solution rather than a legal one, by introducing "bespoke arrangements" for trans prisoners - like the specialist units used in England to house some high-risk inmates.

This was rejected by the Scottish government, with Moynihan saying the number of trans prisoners in Scotland was so small that it posed "fundamental challenges".

The latest figures from the SPS - dating to June 2025 - recorded a total of 19 transgender inmates, which is about 0.2% of the prison population.

Moynihan said that at any point in time there was a danger that only one trans man - born biologically female - would be housed in the unit, effectively making it a form of solitary confinement.

He also said there was a "transport problem", in that there would likely only need to be one unit - meaning that a prisoner from Inverness might need to be sent to prison in Glasgow, rather than being held closer to home.

Meanwhile the Scottish Human Rights Commission said it did not have an issue with a system of individual risk assessments - but raised concerns about how the current one is drafted.

The group said there was no specific reference to the rights of women prisoners or female prison staff, alongside those of trans inmates, or guidance about how to balance those rights.

KC Kenny McBrearty said the group was concerned that the rules could end up being applied in a way that is "not compliant with human rights".

O'Neill told the court on Tuesday that there was "incredible sensitivity" to the rights, dignity and privacy of trans people, while the rights of "incredibly vulnerable" female prisoners were not factored in.

He said the government wanted to retain the flexibility to put "a totally non-violent trans-identifying man" in the women's estate but questioned why female prisoners had to "bear the risk" of this and act as "human shields".

O'Neill continued: "What is required is the preservation of women's only spaces.

"All I am interested in, because of the situation of women, is the preservation of women's dignity, security and sense of safety vis a vis men - that's all."