Women prisoners treated as 'pawns for political gain' claims KC as court case on transgender policy begins

The campaign group For Women Scotland, is challenging the Scottish Government's guidance on where transgender inmates are housed, saying it does not align with the Supreme Court's ruling on the definition of a woman.

That ruling came in a case the same organisation won against the Scottish Government last April over who it defined as a woman when it came to making public boards a 50-50 split between men and women.

Now FWS is back in court challenging the government over its failure to change prisons guidance in the wake of the Supreme Court result, as some male inmates, who identify as women, are in the women's prison estate.

The government has argued that having a "blanket rule" for where prisoners are housed could fall foul of human rights law and there needs to be a case-by-case approach.

But Aidan O'Neill KC, acting for For Women Scotland, told the Court of Session in Edinburgh that there was no case law to back this up.

He said on that basis the government could only be fighting the case on political grounds.

"If it's not law, you do not have a legal case, then presumably it's a political calculation," he told the court. "If that were the case... then what's happening here is that women in prisons are being treated and used by the Scottish Government in this case to be traded as pawns for political gain.

"Who knows what backroom deals have been made between the Scottish Government and other parties."

He added: "It's rooted in this ideological position which the Supreme Court said was wrong as a matter of law, which is that it's enough for a man to say he's a woman to be treated as a woman."

Mr O'Neill also described the policy as "Orwellian", characterising it with the phrase: "Woman good but men identifying as women better.

"Or all woman are equal, but men identifying as women are more equal than others."

He said it is based on an "institutional neglect of and contempt for women's rights", in contrast to what he described as the "incredible sensitivity" shown towards transgender prisoners.

The case also comes in the wake of the outcry over trans rapist Isla Bryson - formerly known as Adam Graham - who was initially sent to Cornton Vale women's prison in Stirling after being found guilty of sex attacks on two women in 2023, before then being moved to a male prison.

Mr O'Neill told the court the current Scottish Prison Service (SPS) policy of holding some trans women in the women's prison estate is "just wrong".

He described female prisoners as an "incredibly vulnerable cohort of women" whom, he said, face an "enforced gaslighting culture" that sees them face disciplinary procedures if they question the presence of trans women.

He quoted SPS stats showing, since 2014, 73 "trans-identifying prisoners" have been imprisoned in prison in Scotland, about 20% of whom have been housed on "an estate that does not match their biological sex".

He said 51 of those prisoners were transwomen - men who identify as women - and that 14 were housed on the women's prison estate and the fact 80% of trans prisoners were held in estates matching their biological sex shows doing so does not conflict with their legal right to have their gender identity respected.

The lawyer also gave examples of some of the trans women he said are currently being held on the women's prison estate, whom he said had carried out serious crimes including murder, torture and assault.

One, from 2014, involved someone a judge described as having committed a "particularly gruesome murder", and another from the same year where the offender stabbed a neighbour more than 20 times.

"How (this policy) affects the vulnerable population of women who have no choice but to live next to these - in some cases violent, murdering men - is just not factored in," Mr O'Neill said.

He added: "Why is it women have to bear the cost of allowing trans-identifying male prisoners to live out their chosen identity".

Mr O'Neill called for "no men in women's prisons", and said one solution would be to provide a dedicated estate for trans prisoners, to ensure "the preservation of women-only spaces".

Judge Lady Ross asked him whether it would be lawful for a transman - a woman who identifies as a man - to be housed in a male prison, but Mr O'Neill said his only concern was the preservation of the women's prison estate.

The Scottish Government's legal arguments, published ahead of the hearing, stated that if a "transgender prisoner can only be placed in the prison according to their biological sex (that) would violate the rights of some prisoners".

It added that that it had a "well-founded concern that being required to adopt a policy that a transgender prisoner can never be held in a prison for the opposite biological sex could give rise to an unacceptable risk of harm".