JUDGMENT SUMMARIES

Summaries of opinions (judgments) provide a short explanation of judicial decisions to assist understanding and may be published in cases where there is wider public interest. They provide the main findings, but do not form part of the reasons for the decision.

The judgment published on the Scottish Courts and Tribunals website is the only authoritative document.

Petition of For Women Scotland for Judicial Review

Lady Ross has today issued a judgment in the petition for judicial review brought by For Women Scotland.

The petitioners, For Women Scotland, challenged the lawfulness of the Scottish Prison Service’s policy in accommodating some biological men in women’s prisons.

Background

The case before the court relates to the Scottish Prison Service’s (SPS) Policy for the Management of Transgender People in Custody Operational Guidance, issued in February 2024.

The petitioner, For Women Scotland, seeks judicial review of the Prisons Guidance, on the basis that it allows, in some circumstances, for the accommodation of some biological men within the women’s prison estate.  The petitioner contends that the first respondents have a statutory obligation to provide women only prison accommodation, and that the Prisons Guidance is unlawful.

The respondents advance two main arguments, the first is that the petition is irrelevant because the petitioner does not advance a specific claim of discrimination or harassment.  The second argument is, in essence, that it may be necessary to place transgender prisoners in a prison of the opposite biological sex in order to avoid a violation of such prisoners’ rights in terms of the European Convention on Human Rights. 

Decision

Sex segregation in prisons in Scotland is lawful.  The statutory scheme requires separate prison accommodation for men and women.  Following For Women Scotland Ltd v Scottish Ministers [2025], this means sex segregation in prisons according to biological sex.

Insofar as the Prisons Guidance allows SPS to accommodate trans prisoners in prisons for the opposite biological sex, it is in conflict with the requirement that prison accommodation be provided separately for men and women. That constitutes a mis-statement of the law. 

Equal opportunities are a reserved matter under the Scotland Act 1998.  The Prisons Guidance does not accord with the law relating to equal opportunities and applying it would be outside the Scottish Ministers’ powers.

All prisoners have rights under the European Convention on Human Rights. Trans prisoners have rights under Article 8, but this does not extend to a right to be accommodated in a prison for the opposite biological sex.  Article 8 rights are qualified and there is a justification for maintaining sex segregation in prisons. 

It is possible that, in relation to Article 2 and in an exceptional individual case, if 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 and that part of the statutory scheme should be disapplied.  Whether that could be achieved lawfully cannot be determined in the abstract. In any event, disapplication of subordinate legislation cannot form part of a general policy.

The Prisons Guidance is unlawful and the petitioner is entitled to orders for declarator and reduction.