Scottish prison guidance for placement of trans prisoners declared unlawful by Outer House

About this case:

• Citation:
  [2026] CSOH 59
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Ross

It was argued by the petitioner, For Women Scotland, that the Scottish ministers had a statutory obligation to provide women-only prison accommodation and in light of the Supreme Court’s decision in For Women Scotland v Scottish Ministers (2025) “woman” was to be construed by reference to biological sex. The respondents contended that the petition was irrelevant as no specific claim of discrimination or harassment had been advanced, and secondly that it may be necessary to place transgender prisoners in a prison of the opposite biological sex in order to avoid an ECHR violation.

The petition was considered by Lady Ross, with A O’Neill KC and T Convery, advocate, appearing for the petitioner and GJB Moynihan KC and L Irvine, advocate, for the respondents. Interventions were made in the case by the Scottish Human Rights Commission and the Equality and Human Rights Commission.

Misstatement of law

In 2022 the first respondents, through SPS, began work on an Equality and Human Rights Assessment as part of an exercise in revising and updating their policy for managing trans prisoners. Substantive information about the implementation of the policy was issues in Prisons Guidance from February 2024, which had six annexes appended do it. In Annex 6, it was directed that where there was no apparent or obvious risk or vulnerability, including the prisoner having perpetrated offences of violence or sexual harm against women, a trans woman could be considered for admission into the women’s estate.

Under rule 126 of the Prisons and Young Offenders Institutions (Scotland) Rules 2011, female prisoners must not share the same accommodation as male prisoners. The petitioners contended that this placed a statutory obligation on the respondents to provide separate accommodation for male and female prisoners, and the Prisons Guidance was premised on a misstatement of the law. They refused the respondents’ arguments about their obligations to respect the Convention rights of trans prisoners, arguing that no case recognised a right to be accommodated in a prison of the opposite biological sex.

The respondents’ position was that FWS 2 (2025) did not provide the answer to the present issue. At the close of the respondents’ oral argument, senior counsel for the respondents described their task as having to deal with the practical consequences of FWS 2 and submitted that, in view of their obligations under the Equality Act 2010 and their duties in terms of sections 54(3) and 57(2) of the Scotland Act 1998 in respect of Convention rights, they would act unlawfully whatever they did. That ultimately led the respondents to the argument that, unless it was possible to construe Schedule 3 to the EA 2010 in a way that was compatible with Convention rights, it would be necessary to make a declaration of incompatibility.

The first intervener, the SHRC submitted that, while there was no positive obligation or presumption in respect of the placement of trans prisoners, a “without exception” policy could breach their rights. The EHRC resisted the respondents’ argument that the EA 2010 and the 2011 Rules could be read down, arguing that the “grain” of the EA 2010 was predicated on biological sex, making an interpretation diverting therefrom incompatible with that core.

Cannot be reconciled

In her decision, Lady Ross considered that a relevant case had been pled, explaining: “In general terms, service-providers and those who exercise public functions must make sure that the ways in which they carry out those responsibilities are lawful. They must be prepared to meet individual claims but they will only be able to do that in a considered and consistent way if, at the stage of devising policy, they take account of all of their obligations, including those under section 29 of and Schedules 3 and 22 to the EA 2010. If they adopt a policy which, when implemented in individual cases, will result in a breach of their statutory obligations, then that policy may be challenged as being unlawful. In these proceedings, the petitioner seeks judicial review of a policy, and that involves consideration of its lawfulness at a general level.”

She added on the nature of placement decisions: “That is a governmental function, which can be discharged only by the first respondents, and in doing that they are exercising the coercive powers of the state. They are not simply providing an accommodation service to a section of the public. Once admitted to a particular establishment, the respondents will be responsible for the provision of services to that prisoner. However, the critical act is the decision in relation to prison allocation. In my view, that is the exercise of a public function and is subject to section 29(6) and Schedule 22.”

Considering the ECHR aspect of the case, Lady Ross said: “The respondents are inviting the court to develop the law in relation to Convention rights beyond the limits of the Strasbourg case law. However, the domestic courts should not go further than they can be confident that the European court would go. I cannot be confident that the European court would go so far as to recognise a Convention right for a trans prisoner to be accommodated in a prison for the opposite biological sex; no authority has been cited that would allow me to reach that conclusion.”

She went on to say: “The effect of qualifying the scope of separate (or single) sex provision by reading in ‘primarily’ would, in the prisons context, be that women’s prisons accommodate biological women and a subset of biological men. That cannot be reconciled with the decision of the Supreme Court in FWS 2 and its approach to Schedule 3. The separate sex and single sex provisions relative to services in paragraphs 26 to 28 depend on ‘separate’ and ‘single’ being exclusive. Reading in a qualification would take that away. That must go against the grain of the legislation.”

Lady Ross concluded: “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 and that rule 126 should be disapplied. Whether that could be achieved compatibly with the requirements of the EA 2010 cannot be determined in the abstract. In any event, disapplication or disregard of subordinate legislation cannot form part of a general policy.”

The court therefore held that the petitioner was entitled to orders for declarator and reduction and put the case out by order for submissions on the appropriate terms of the interlocutor.