Today, the Outer House of the Court of Session ruled that the Scottish Prison Service’s “Policy for the Management of Transgender People in Custody” is unlawful. The policy said that there should be an individual risk assessment for each trans prisoner, before deciding whether to place them on the men’s or women’s prison estate.

Content note: discussion of suicide

It’s a long judgment, and we have not had time to read it in detail. But in summary, the Court ruled that:

• The Prison Rules require separate prison accommodation for women and men. Following last year’s UK Supreme Court ruling on the meaning of ‘sex’ in the Equality Act 2010, this should be understood as “biological sex” (meaning “sex at birth”).
• Trans prisoners should be housed in accommodation that matches their “biological sex at birth”.
• If it is genuinely inappropriate for trans prisoners to be held in accommodation for their “biological sex at birth”, this does not mean that they have a right to be held on the estate that aligns with their gender identity. The Prison Service could, for example, have specific trans prisons, or units within prisons.
• This may interfere with trans prisoners’ rights under the European Convention of Human Rights to their gender identity (Article 8), but that is a qualified right. It is a justified and proportionate interference in the situation of providing separate-sex prison accommodation.
• There may be a very small number of instances where a specific trans prisoner could claim that their Article 2 rights (the right to life) would be breached by being held on the estate for their “biological sex at birth”, as doing so would place them in such distress that this would result in suicidal ideation and a high risk of death by suicide. Sometimes, being placed on the estate that aligned with their gender identity may be permissible in these circumstances.
• However, because examples like this were likely to be so infrequent, the policy is wrong to take as its starting point that all trans prisoners can be placed on the estate that aligns with their gender identity after an individualised risk assessment.

We think that this ruling will result in trans prisoner’s human rights being violated and place them at very real risk of serious harm. Only last year, a fatal accident inquiry 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.

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 Scottish Government may choose to appeal the judgment, to the Inner House of the Court of Session.