SNP ministers challenging Supreme Court verdict on gender

SNP ministers are seeking a legal ruling that would make it a breach of human rights to remove biological males who identify as transgender women from female prisons.

The Scottish Government has repeatedly said it accepts the judgement from April last year, which ruled that the words “woman” and “sex” in the Equality Act 2010 refers to biological sex.

Since then, the Scottish Government has issued new guidance around single-sex spaces such as toilets in schools, but has so far not changed its position on prisons.

For Women Scotland, who led the legal case in the Supreme Court, has since launched fresh legal action to have guidance on single-sex spaces in Scottish prisons ruled unlawful.

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The Scottish Government has issued a formal notice to Advocate General Baroness Smith of Cluny KC, seeking a “declaration of incompatibility” to find UK law a breach of human rights.

Trina Budge, director of For Women Scotland, told The Times: “Male murderers are still being held in the female prison estate and we simply wouldn’t have to take the Scottish ministers back to court about this if they genuinely accepted the decision of the Supreme Court.”

She also claimed that Justice Secretary Angela Constance and Health Secretary Neil Gray have broken the ministerial code by stating that the Scottish Government accepts the Supreme Court ruling.

Ms Budge said: “They clearly don’t accept it, and the whole country can see that Angela Constance and Neil Gray are lying.

“For [First Minister John] Swinney to repeat this lie to us rather than investigate his ministers for a breach of the code is the height of arrogance.

“It’s clear to us that the Scottish Government holds both the truth and the public in complete disdain - they can’t even tell right from wrong any more.”

The Scottish Conservatives say this “shameful” development in the long-running saga of single-sex spaces and the First Minister needs to “grow a backbone”.

Tess White MSP, the party’s equalities spokeswoman, said this will lead to more situations like the Isla Bryson case. Double rapist Bryson was initially housed in a female prison after identifying as a trans woman, and was later moved to the male estate after a public backlash.

She said: “This is a shameful example of nationalist ministers scheming behind closed doors to overturn the law.

“It’s been nine months since the Supreme Court ruling, but they just can’t accept it. They’re alarmingly out-of-touch with public opinion.

“Their underhand attempt to undermine this crystal clear verdict risks making it virtually impossible to keep biological males out of women’s prisons - putting vulnerable female inmates in real danger and repeating the grotesque Isla Bryson scandal.

“Enough is enough. John Swinney needs to grow a backbone, stop dancing to the tune of gender extremists and enforce the Supreme Court ruling in full.”

Mr Swinney replied to a letter from For Women Scotland on Tuesday, and said it was not “appropriate to engage in public comment” on live court proceedings, but added his ministers were “accurately and openly” reflecting the position.

A spokesperson for the Scottish Government added: “The Scottish Government has made clear it accepts the Supreme Court ruling and is taking forward the detailed work necessary.

“As the First Minister has said, it is the Scottish Government’s long-held position that it is inappropriate to comment on live litigation.

“In all cases, we have an obligation to uphold the independence of the judiciary.”

First Minister John Swinney was questioned on this by his own backbencher Michelle Thomson MSP and journalists at first minister’s questions on Friday.

Ms Thomson said she was “confused” as to why a declaration of incompatibility has been sought when cabinet ministers have said they accept the Supreme Court’s judgement.

Speaking to journalists afterwards, Mr Swinney said: “We’ve got to make sure the rule of law is applied in all circumstances - that underpins the actions this government has taken in every respect in this case.

“You are inviting me to become involved in detailed discussion of complex legal arguments on convention rights.

“These are issues complicit in the consideration and application of the Supreme Court, that’s why the government is considering this issue.

“I believe fundamentally in the rule of law to make sure the government is acting in a legal manner.”

He said he was “not prepared” to go any further into discussions on a “complex and comprehensive ruling”.

For Women Scotland has since published its petition and note of argument lodged with the Court of Session against the Scottish Government.

In it, For Women Scotland said: “The Scottish Prison Service’s current 2024 policy on the housing of transgender prisoners is unlawful, because it is predicated on the basic error in law that at least some male prisoners (among those who claim the protected characteristic of gender reassignment) might lawfully (consistently with the Equality Act 2010) be assigned to serve their sentences within the women’s prison estate.”

It added: “The Equality Act 2010 also imposes positive duties upon the Scottish ministers not to allow incarcerated women prisoners to be placed in a situation which these women may, reasonably and foreseeably, consider to violate their dignity as women and create an intimidating, hostile, degrading, humiliating or offensive environment for them as women.

“The inability of women prisoners to object to decisions of the Scottish Prison Service to choose to place within the women-only designated prison estate biological males who claim the wholly unverifiable/unfalsifiable protected characteristic of gender reassignment compounds the humiliating lack of agency which these women have within the avowedly women-only estate in prison.

“In giving these women no choice but to be incarcerated in the same accommodation as biological males, [the] Scottish Prison Service has caused - wholly unnecessarily and eminently avoidably - what many incarcerated women will undoubtedly experience as violation of their remaining dignity as women in prison, and as creating for them - as imprisoned women - an intimidating, hostile, degrading, humiliating and offensive environment.”