A Scottish judge has ruled that prison guidance allowing some transgender-identifying prisoners to be housed according to their gender identity rather than biological sex is unlawful.
The ruling was issued by Lady Ross following a judicial review challenge brought by the women’s rights advocacy group For Women Scotland. The case centered on guidance used by the Scottish Prison Service to determine inmate housing.
The judge determined the guidance was "in conflict with the requirement that prison accommodation be provided separately for men and women.”
"In all the circumstances, the prisons guidance is unlawful,” Ross wrote.
The Scottish government had argued that housing prisoners strictly according to biological sex could violate the rights of transgender-identifying inmates. However, Ross concluded that the guidance was incompatible with existing legal requirements governing prison accommodation.
According to the BBC, the Scottish Prison Service currently assesses transgender-identifying prisoners on an individual basis. Biological males who are deemed not to pose a risk may be housed in women’s prisons.
Ross acknowledged that transgender-identifying prisoners retain rights, but found that those rights do not necessarily include being housed in facilities designated for the opposite biological sex. The judgment stated that such rights may be restricted when there is sufficient justification.
Susan Smith, co-director of For Women Scotland, said the group was “delighted” after the victory.
"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," she said. "We should never have needed to take this case and we hope this will be the last time that we are forced to go to law to defend the rights of women."
First Minister John Swinney also told BBC Scotland that the government will consider the implications of the judgment.
"We will consider all of these details because there are complex issues that are involved, but at this early stage I acknowledge the outcome of the judgement from Lady Ross and the government will consider its findings.”
The ruling was issued by Lady Ross following a judicial review challenge brought by the women’s rights advocacy group For Women Scotland. The case centered on guidance used by the Scottish Prison Service to determine inmate housing.
The judge determined the guidance was "in conflict with the requirement that prison accommodation be provided separately for men and women.”
"In all the circumstances, the prisons guidance is unlawful,” Ross wrote.
The Scottish government had argued that housing prisoners strictly according to biological sex could violate the rights of transgender-identifying inmates. However, Ross concluded that the guidance was incompatible with existing legal requirements governing prison accommodation.
According to the BBC, the Scottish Prison Service currently assesses transgender-identifying prisoners on an individual basis. Biological males who are deemed not to pose a risk may be housed in women’s prisons.
Ross acknowledged that transgender-identifying prisoners retain rights, but found that those rights do not necessarily include being housed in facilities designated for the opposite biological sex. The judgment stated that such rights may be restricted when there is sufficient justification.
Susan Smith, co-director of For Women Scotland, said the group was “delighted” after the victory.
"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," she said. "We should never have needed to take this case and we hope this will be the last time that we are forced to go to law to defend the rights of women."
First Minister John Swinney also told BBC Scotland that the government will consider the implications of the judgment.
"We will consider all of these details because there are complex issues that are involved, but at this early stage I acknowledge the outcome of the judgement from Lady Ross and the government will consider its findings.”
