The Scottish Prison Service (SPS) has moved all transgender inmates to facilities aligned with their biological sex, ending a policy that allowed male-bodied prisoners to be housed in women's jails. The decision came after the Scottish government chose not to appeal a court ruling that declared the previous guidance unlawful.
Lady Ross, a judge at the Court of Session, ruled last Friday that the SPS guidance permitting transgender women to be held in facilities with biological women was unlawful. This judgment followed a legal challenge brought by the feminist group For Women Scotland, which contended that equality rights are based on biological sex, not gender identity, referencing a UK Supreme Court ruling.
Despite the court's decision, the SPS initially attempted to adhere to its existing guidance, which Lady Ross described as a misstatement of the law. The Scottish government faced criticism for defending this position, with an estimated £400,000 in taxpayer funds spent on the legal defense over more than a year.
Critics, including author J.K. Rowling and Scottish Conservative equalities spokesman Meghan Gallacher, stated that the government was compelled to change its policy only after significant legal pressure. Gallacher urged the current First Minister, John Swinney, to ensure all government bodies uphold women's access to single-sex spaces.
Among the transgender inmates relocated are three individuals previously convicted of murder who identified as female. They have now been moved to male facilities. The legal dispute was initially brought to prominence by the case of Isla Bryson, a convicted rapist who transitioned while awaiting trial in 2023. Bryson was initially remanded to a women's jail after conviction but was subsequently moved to a men's facility.
For Women Scotland expressed satisfaction with the outcome, stating that the move was long overdue, particularly after the Supreme Court's ruling. The group criticized the influence of publicly funded lobbyists and the financial cost to taxpayers.
Justice Secretary Neil Gray confirmed the government's acceptance of the ruling and the decision not to appeal. He cited the court's judgment, the legal obligations of ministers, and the serious practical implications, including risks of suicide, as factors in the decision. Gray stated that the focus would now shift to implementing the law as clarified by the court.
An SPS spokesman confirmed the immediate withdrawal of the previous policy and stated that individuals would be managed according to their biological sex, with a planned and safe transfer of the affected individuals.
John Swinney defended the government's actions, asserting the necessity of seeking judicial clarification on complex legislative interactions between devolved and UK law, as well as European convention rights. He stated that he could not apologize for the process of ensuring the government acted lawfully.
