Women’s group petitions for blanket ban on men in women’s prisons

A hearing has taken place on a judicial review brought by For Women Scotland (FWS) of the Scottish Government’s policy on housing prisoners who identify as members of the opposite sex.

Representing the gender-critical campaign group, Aidan O’Neill KC told the Court of Session that the current policy is rooted in an “ideological position” which runs counter to the Supreme Court ruling on biological sex.

Last April, the UK’s highest court ruled in favour of FWS’s challenge to Scottish Government guidance that allowed men to take women-only positions on company boards. Justices said that the terms ‘woman’, ‘man’ and ‘sex’ in the Equality Act 2010 refer to biological sex.

Statutory obligation

Since February 2024, according to Scottish Prison Service guidance, a man who holds a Gender Recognition Certificate will be eligible for admission or transfer to a women’s prison unless they have a record of “violence against a female”.

In court, Mr O’Neill accused the Government of appearing to maintain its pro-trans policy despite the Supreme Court’s judgment, “which the Scottish Ministers lost soundly, roundly, completely and unequivocally”.

He defended FWS’s legal position as “entirely straightforward”, stating that Ministers “are statutorily obliged to provide women-only prison accommodation, which is separate and distinct from that provided for male prisoners”.

The leading human rights lawyer called out what appeared to be “an incredible sensitivity” for “the rights of people claiming gender reassignment” but a disregard for the rights of women imprisoned next to these sometimes “violent, murdering men”.

EHRC intervention

In a submission to the Court by the Equality and Human Rights Commission (EHRC), Janys Scott KC said the policy was “likely to result in mixed-sex provision”.

If biological men are admitted to serve time alongside women, she explained, then you “could simply have a man who says ‘the new women’s facility in Stirling looks lovely – why can’t I go there?’”

The EHRC called on the Government “to ensure that the rights of all are properly observed”. Crucially, it said, that includes “the rights of women prisoners to safety, privacy and dignity. If that requires the making of bespoke arrangements for trans prisoners then that is what it requires to happen.”

Welcoming the intervention, FWS Co-Director Susan Smith said: “As we and they say, trans prisoners can and should be accommodated in a way that doesn’t include putting them in the women’s estate.”