Scottish court declares trans prisoner guidance unlawful

Allowing a petition for judicial review brought by campaign group For Women Scotland, Lady Ross in the Outer House of the Court of Session concluded that the guidance, issued in 2024, was based on a misstatement of the law following the UK Supreme Court’s decision in For Women Scotland v Scottish Ministers (2025), which held that references to “woman” in the Equality Act 2010 are to biological sex.

The challenged guidance allowed trans women to be considered for placement in the women’s estate where no obvious risk factors were identified. However, Lady Ross held that Rule 126 of the Prisons and Young Offenders Institutions (Scotland) Rules 2011 requires separate accommodation for male and female prisoners and that the policy could not be reconciled with that obligation.

Rejecting arguments that Convention rights might require accommodation in a prison of the opposite biological sex, the judge said no Strasbourg authority supported such a right. While an exceptional individual case involving a threat to life might justify consideration of disapplying the rules, she held that such circumstances could not underpin a general policy.

The court granted declarator and reduction, with further submissions to be heard on the terms of the interlocutor.

Our sister publication, Scottish Legal News, has the full case summary here.