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NOTE: We are not lawyers. We haven’t attempted to describe or give advice on all the legal arguments that are being made, either by For Women Scotland or the Scottish Ministers. This is intended as a summary to help people understand more about this case as it will likely be covered in the media and Parliament this week.
Between the 3rd and 5th February 2026 the Court of Session (which considers civil law as opposed to criminal law) will be hearing a case that is challenging the Scottish Prison Service’s “Policy for the Management of Transgender People in Custody”.
The case is being brought by For Women Scotland against the Scottish Ministers (the Scottish Government) as they have ultimate responsibility for the Scottish Prison Service. For Women Scotland are the same organisation that has previously won two cases against the Scottish Government, resulting in the restriction of trans people’s rights.
The current policy on managing trans prisoners says that there should be an individual risk assessment for each trans prisoner, before deciding whether to place them in men’s or women’s prison accommodation. We agree with this approach, which we think is the only way to respect the human rights and safety of everyone. We wrote about this in a column for the Scotsman in 2023, and our position hasn’t changed (content note: mentions of sexual violence including rape): Link to Scotsman article
The main argument that For Women Scotland are making is based on the decision of the UK Supreme Court, in their previous case against the Scottish Government in April 2025, that “sex” in the Equality Act 2010 means “biological sex”. They now argue that following that decision, it is unlawful for the Scottish Prison Service to ever house trans women in women’s prisons, or trans men in men’s prisons.
They say that where prisons are provided separately to women and men, this must be done on the basis of “biological sex”.
Because the current policy allows for trans prisoners to be held on the estate that aligns with their gender identity after an individualised risk assessment, For Women Scotland say it is unlawful.
The main arguments of For Women Scotland are:
Scottish Ministers argue that they must take into account a number of legal requirements to have a policy on where trans people are housed on the prison estate to ensure that the policy is lawful.
They say that:
Content note: mentions of suicide and sexual assault in this section
We agree with Scottish Ministers that if all trans people were required to be held in prisons that matched their “biological sex” recorded on their original birth certificate, that this would be likely to result in serious breaches of trans people’s human rights, including the increased likelihood that they would be placed in solitary confinement or isolation for their own safety, when they could otherwise safely be housed in general population in an estate matching their gender identity.
A fatal accident inquiry in 2025 found that the Scottish Prison Service had unlawfully segregated Sarah Jane Riley, and failed to properly assess her risk of suicide, when she was held in solitary confinement in Perth Prison in 2019 where she died by suicide.
There have also been cases in other parts of the UK where trans women prisoners have died after being placed in the men’s estate.
Vicki Thomson, was detained in HMP Leeds for a shoplifting conviction. Despite having no history of violence towards women, she was placed on the men’s estate where she was subjected to various instances of sexual assault. She raised concerns for her safety and was subsequently placed on suicide watch, but she died by suicide following failings in her care. Vicki is one of several cases which lead to an investigation by the Prisons and Probations Ombudsman in England and Wales, which found that;
“where a transgender prisoner is sent should be based on an individual assessment of their needs and the possibility of them being with their acquired gender”.
In 2023, the Council of Europe’s Committee for the Prevention of Torture (CPT) published their core principles to ensure the respectful and decent treatment of trans people in prisons.
This states that
“as a matter of principle, transgender persons should be accommodated in the prison section corresponding to the gender with which they identify.”
On the issue of trans prisoners being placed in solitary confinement or isolation for protection purposes, the CPT say that
“Given that it is widely recognised that isolation or segregation can have long-term negative consequences on an individual, especially if it is prolonged or indefinite, such placement can only be justified in exceptional circumstances, in the short-term, and with the proper safeguards in place.”
The decision could therefore have extremely serious implications for the rights of trans prisoners.
For Women Scotland have taken this case largely because of April 2025’s UK Supreme Court ruling that “sex” in the Equality Act 2010 means “biological sex”.
There is serious uncertainty about exactly what the impacts of that ruling are, nearly a year later. One of the areas with the greatest uncertainty is what it means for how trans people should be treated in spaces and services provided separately for women and men.
Previously, the understanding of the law was that all trans people could be included in spaces and services that aligned with our gender identity, unless preventing us from doing so was a proportionate means of achieving a legitimate aim (e.g. done in the least impactful way possible, and for a good reason).
In this case, For Women Scotland are arguing that the Supreme Court ruling means that trans people must always be treated as our “biological sex” (indeed this is their position on how trans people should be treated in all aspects of the law and daily lives).
Scottish Ministers are arguing that the Supreme Court ruling does not mean this. They say that this is too literal an approach to the law, and that even where a service is usually provided separately to women and men, and even though this is based on “biological sex”, this does not prevent some flexibility for services and spaces to be inclusive of a small number of people for whom those services and spaces are appropriate (in this case – trans people being housed in prisons that align with their gender identity where this is decided as the best course of action following an individualised risk assessment).
In addition, Scottish Ministers are arguing that if they are wrong about that flexibility, then that means that the Equality Act 2010 is incompatible with the human rights of trans prisoners, and that the Court should make a ‘declaration of incompatibility’ under the Human Rights Act 1998.
The case could therefore have serious impacts on our understanding of the law following the UK Supreme Court ruling, and on trans people’s equality and human rights more broadly than in prisons. These could be either positive or negative.
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Scottish Trans is part of the Equality Network
Scottish Trans is the Equality Network project to improve gender identity and gender reassignment equality, rights and inclusion in Scotland. The Equality Network is a leading Scottish lesbian, gay, bisexual, transgender and intersex (LGBTI) equality and human rights charity.
The Equality Network is a registered Scottish charity: SC037852, and a company limited by guarantee: SC220213.
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