“We are thrilled with the result, but it should never have come to this.”
The Scottish government’s policy of putting men in women’s prisons has today been ruled unlawful. A judicial review found in favour of the campaign group For Women Scotland, who argued the current Scottish Prison Service policy of taking into account a prisoner’s gender identity was dangerous and wrong.
Today Lady Ross, sitting in the Outer House Court of Session (Scotland’s equivalent of the High Court), ruled that “sex segregation in prisons in Scotland is lawful” and there is a “justification for maintaining sex segregation in prisons.”
She ruled that “trans prisoners have rights… but this does not extend to a right to be accommodated in a prison for the opposite biological sex.” There was no “positive obligation” for the state to do so , and therefore “in all the circumstances, the Prisons Guidance is unlawful.”
Reacting to the ruling, Susan Smith from For Women Scotland (pictured in green above) said “We are delighted to have won such a comprehensive victory in our judicial review on Scottish prison policy. All the arguments from the Scottish Ministers were comprehensively rejected by the court… 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. Ultimately, this is a victory for the very vulnerable women in the prison estate.”
You can read the judgment in full here. A Scottish Prison Service spokesperson said: “We are grateful to Lady Ross for her judgement, which we will carefully consider, at pace, along with the Scottish Government. It would not be appropriate to comment further at this time.”
For Women Scotland are Marion Calder, Susan Smith and Trina Budge (right in the photo above). In April last year they achieved a seismic Supreme Court victory which anchored the legal definition of men and women in biological sex. Despite the legal requirement for sex segregated prisons, the Scottish government and the Scottish prison service maintained it was lawful to continue housing male prisoners who identified as women in the female prison estate.
Marion Calder from FWS (pictured on the left) told me she would be “raising a glass of something cold this evening. While thinking of the women who have been deeply damaged by the illegal policy. Our thoughts are with them.”
In February, FWS took the matter to judicial review in a three day hearing at the Outer House in Edinburgh. Some of the legal arguments made in court can be read here:
Day 1: For Women Scotland back in court
Day 2: Dawn of the Intervenors
Day 3: Suicide is Shameless
There are known to be seriously violent men in the female prison estate in Scotland. They will now have to be removed.
Wiggle Room
Despite the comprehensive nature of the ruling there is potentially a bit of wiggle room. The issue of suicidality came up a lot in the judicial review hearing – the idea that trans prisoners may take their own lives if they are unable to be incarcerated according to their gender identity.
In today’s ruling Lady Ross said “It is possible that, in an exceptional individual case, in a situation where there is a threat to life through suicide, it may be necessary to consider an argument that accommodation in a prison for the opposite biological sex is necessary.” However, she continued, “whether that could be achieved compatibly with the requirements of the Equality Act cannot be determined in the abstract.” She intimated any such circumstance “cannot form part of a general policy”.
Trina Budge told me she was “delighted with the ruling and we hope to see the remaining male prisoners in the women’s estate moved immediately”. Budge also wondered if “the Scottish Government will consider doing the decent thing and compensate the women affected for the trauma they have suffered.”
Today’s ruling is another landmark moment for an extraordinary group of women who have now achieved a series of important and lasting legal victories. Understandably, Susan Smith said FWS were “incredibly grateful” to their “brilliant legal team … we’ve been promising them a lunch to celebrate ever since we won our first Judicial Review in 2022. Perhaps we will finally get the chance!”
The Scottish government and the Scottish Equality and Human Rights Commission (who intervened in the judicial review) have been contacted for comment.
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