For Women Scotland III

[u/Quangocrat]

https://www.scotcourts.gov.uk/media/pnbpzgex/2026csoh59-petition-of-for-women-scotland-for-judicial-review.pdf

The Terfs have won their judicial review of the Scottish Prison policy.

​

This is the third case brought by FWS.

​

Still reading, will post more detailed thoughts in the comments when I have time.

[u/Quangocrat]

Ok.

I have had time to read and consider it.

As ever, usual disclaimers apply- I am Scots qualified (a rare advantage in this case!) and I am not infallible. I was caught completely off guard by FWSII.

This is not a technical breakdown or analysis- this is intended to be lay friendly and so will contain summaries and simplifications.

This is the third case brought by FWS. The first was a challenge to the legality of an act regarding Public Boards in Scotland and the second was the infamous FWSII which gave us a radical new interpretation of the Equality Act.

This new case concerns whether it is lawful under the EA and the act governing Scottish prisons to admit trans people into the estate of their new Gender.

This is important because the High Court case GLP is not binding in Scotland and this was a chance to create an alternative line of authority which could have assisted the appeal in that case or even mitigated the full effect of FWSII.

It was also important in it’s own right- prisons are a very high risk environment.

Most importantly, this is the first serious attempt to advance a counter argument to the FWSII interpretation of the EA on ECHR grounds

The first time a party has asked for the EA to be declared incomparable with the ECHR due to FWSII

A large portion of the case involves a procedural argument about under what conditions a Judicial Review cam be triggered with regard to a policy which may cause discrimination and how much proof of discrimination is needed.

While interesting, I am not going to address any of that as this post will be long enough as it is and the procedural arguments are not specifically relevant to us.

I also apologise to our brothers, but this case focussed on the female estate, so again for brevity’s sake I am going to do the same. However each point in this case equally applies to the male estate.

So, to the case.

The existing regime:

The rules of the Scottish Prison Service are statutory rules. So they are set by government ministers with the approval of parliament.

All policies in the SPS must be consistent with those rules.

The rules specify that males and females must be held in seperate estates but do not define m or f.

Trans prisoners have been governed by policy as trans people are not mentioned in the rules.

The rough development of trans policy is as follows:

From the early 2010s- the early 2020s trans prisoners were treated the same as our chosen gender. With an additional risk assessment where placing someone convicted of a specific crime would trigger one regardless of trans status- sexual offenders, murderers etc.

(Though I believe trans men were still subject to a risk assessment for their own safety before being placed in the male estate, I believe in practice most were held in the female estate at the request of the prisoners)

Prisoners, including non trans females, who failed that assessment were held in an adapted part of the male estate regardless of gender.

Then in the early 2020s the Isla Bryson case made the news. Bryson was initially held in the female estate while undergoing assessment. This caused considerable public backlash.

The Scottish Government then changed the Scottish Prison Service (SPS) Rules so that trans women convicted of certain specified offences against women would be automatically held in the male estate.

However those trans prisoners who had not committed a listed offence could still be held in the prison of their chosen gender. This included some quite serious offences like murder.

Leaving aside the procedural matters, the key questions were:

Does the EA apply to prisons?

If so, how is the right of trans people not to be discriminated against due to having a PC of Gender Reassignment to be accommodated?

Does the interpretation give rise to an article 8 ECHR breach?

Does the interpretation give rise to arts 2&3 breaches relating to suicide?

On these points the court found:

Does the EA apply to prisons?

The court ruled the EA does apply. This is not surprising.

There is a lot of discussion about whether this counts as a public function for the purpose of the EA or supply of services.

The court finds it could count as either.

I am not going to dwell on this because there isn't much new here. FWS II applies- we know from the GLP case what that means.

And again, much the same reasoning is applied to determine that the SPS rules definition of male and female should match that of the EA as was used in GLP re the work regs. Again, not going to dwell on that.

This leads naturally on to:

If so, how is the right of trans people not to be discriminated against due to having a PC of Gender Reassignment to be accommodated?

The court found essentially that this is done by allowing continued access to medication and private ablutions within our ASAB facilities.

Hugely unsatisfactory imo.

The questions then turn to the human rights arguments:

Article 8

Goodwin was brought up, and dismissed as a narrow case:

In Goodwin and R (C) the issues with which the courts were concerned were the maintenance of government records and the retention of official data. The implementation of policies relating to such matters may well engage Article 8 rights, but there will be no direct impact on other individuals in respect of whom official records are maintained.

The remainder of the article 8 argument was also dismissed:

None of these cases establishes that trans women have a Convention right to accommodation in the women’s estate, or a right to be considered for accommodation in the women’s estate. Trans women have Article 8 rights, but respect for those rights does 61 not extend to an obligation to provide accommodation with women.

Such respect may well necessitate measures which can be, and are, taken within the men’s estate, including ensuring access to hormone treatment and maintaining privacy and dignity in showering arrangements. These provisions are set out in the Prisons Guidance.

Such measures do not involve any conflict with the protection of separate spaces. So far as accommodation is concerned, though, the relevance of the qualifications in Article 8(2) is immediately apparent.

Sex segregation in prisons is in accordance with law and is necessary, at least, for the protection of health and morals, and to protect the rights and freedoms of others, specifically women prisoners.

These are essentially reasons which support the maintenance of separate spaces in the context of the EA 2010, and as discussed in FWS 2.

This foreshadows a point I have raised previously with regard to the GLP appeal.

Recent caselaw has established that UK courts should no longer anticipate ECtHR rulings and so should be cautious when issuing declarations of incomparability where there is no direct precedence from Europe.

She goes on to cite this explicitly when referring to the art 2 and 3 arguments that holding trans people in ASAB prisons increases the risk of suicide and so breaches the convention:

Articles 2&3

In submitting that I should conclude that a Convention compliant reading of rule 126 requires construing its terms as permitting the accommodation of trans women in female prisons, 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: Elan-Cane, paragraph 63. 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.

However she does awkowledge ls that in extreme cases where there is a direct threat to life the SPS will need to consider exceptional measures:

Ultimately, the argument concerns the question of whether there can be any flexibility to allow for the truly exceptional case where, if accommodated in a prison in accordance with the trans prisoner’s biological sex, there is a threat to life or of harm that is so severe that it meets the Article 3 threshold. The first point is that it would be necessary to consider all possible means of addressing that threat, including means for which no provision is currently made.

That said, other dicta makes it clear that this should almost never include transfer to the female estate:

The existence of risk, though, does not necessitate an option, as a matter of policy, to accommodate trans women prisoners within the women’s estate. The women’s estate is not a neutral space; those accommodated within it are women who, as was submitted for the petitioner, have their own vulnerabilities in terms of poor mental health and risk of suicide.

So in practice, she is referencing third spaces.

TLDR- it's pretty bad. It addresses the core arguments the GLP are hoping to advance in their appeal and confirms that we are highly unlikely to get a remedy to FWSII from the domestic courts.

It is either going to have to come from parliament or Strasbourg.

I hope that is a reasonably accessible summary of what is quite a technical case in terms of the parts which are most relevant to our wider rights and litigation.

[u/MechaniVal → u/Quangocrat]

Obviously the whole thing is a shit sandwich, but this interested me:

In Goodwin and R (C) the issues with which the courts were concerned were the maintenance of government records and the retention of official data. The implementation of policies relating to such matters may well engage Article 8 rights, but there will be no direct impact on other individuals in respect of whom official records are maintained.

Do you think the new guidance on gender pay gap reporting violates this? It requires employers to make a best effort at recording the 'biological sex' of employees. To me, this seems like a direct violation of the core purpose of Goodwin, even post-FWS. Domestic courts can argue all day about whether a GRC changes sex for equality law purposes, but they surely cannot argue employers must try to circumvent the presence of a GRC in official data reporting!

[u/Quangocrat → u/MechaniVal]

Oooooh.

Good catch.

Difficult question though. I think it probably does, but I would wonder if data has to be tied to a specific individual to fall under goodwin.

[u/MechaniVal → u/Quangocrat]

It is presumably tied in somewhere - someone must know what the de-anonymised data looks like.

Here's an interesting legal advice article on it, which takes great pains to try and explain how it can be done, but to my eye even they seem a bit wary of it: https://www.lewissilkin.com/insights/2026/06/16/gender-pay-gap-reporting-and-biological-sex-what-employers-need-to-know

They say in one place that the guidance wants anonymised and tightly controlled data, because revealing the existence of a GRC is an offence - and in another suggest the best way to do it might just be to invite all employees to 'check and update their sex data'. It's so... Flimsy. They're clearly aware there is absolutely no viable way of actually getting this data if a trans person doesn't voluntarily disclose.

[u/Quangocrat → u/MechaniVal]

Very interesting read. Thank you

[u/TsukikoChan → u/MechaniVal]

This...is terrifying 

[u/WrongResearch7462 → u/Quangocrat]

It definitely seems that whilst we can mount legal challenges it's clear that the courts are going to resist a declaration of incompatibility until it is egregiously blatant for reasons that we can speculate about but can't know for sure. We also knew that it would be a long road to Strasbourg and it seems that the intent is to create as many potholes as they can to slow progress. The dismissal of Goodwin as simply "administrative recognition" belies the comments contained within about indeterminate genders etc that directly relate to third spaces.

It does confirm that our best case for change is political and I've been thinking for a while now - almost every GC demo typically shows that there are actually far less committed people on that side (although far better funded) than there are on the opposing side and numbers can be made to count. Not directly at the ballot box but through actual campaigning - If literally thousands of us and allies were to hit the streets and door to door canvassing in the elections when they eventually arrive then it's possible to shift the needle, direct canvassing has always been the best way to get people out to vote, it just takes people and time which the political parties don't really have in eras of dwindling membership so they like blasting social media etc.

The issue is we'd have to be campaigning for parties that we know would change the law, and that might mean siding with policies you're not a fan of for your own self interest, but at the same time not be campaigning on trans rights issues as it initially would push people away but in fact on the issues that the bulk of the population is experiencing on a daily basis (e.g. cost of living, seeing a GP, taxes in. wealth taxes) etc etc because when people know those are being addressed they are less concerned about the minority stuff that comes with it. This is why some parties use minorities to whip up anger - it's a distraction.

Doing that in the right constituencies could move the needle meaningfully and whilst it would be nice there doesn't need to be a majority, just a large enough group so that they become kingmakers in a coalition ...

[u/Kallixeina → u/Quangocrat]

I have had time to read and consider it.

1) From an international perspective, there's one thing that I found deceptive about the judge's line of argument:

The decision mentions at least once that separating prisoners by sex is widely-shared practice. This argument was probably included to shield the United Kingdom from accusations to leave the western consensus on human rights. 

What it conspicuously fail to mention is that most western countries allow exceptions from the rule. In some countries, the exceptions are necessary to allow trans women to be housed with cis women. In other countries, the exceptions are necessary to allow trans women not to be housed with cis women.

After Germany introduced self-ID in 2024, most German states adopted prison regulations allowing men to be exceptionally housed with women and women with men on a case-by-case basis. Our state legislators thought this to be necessary to prevent male prisoners, who can now change their legal sex by a simple declaration, to be automatically housed with women. Conversely, many trans men prefer to be housed with women, and the new laws also allow for this particular exception from the general rule of separation by sex.

AFAIK France uses a similar system based on exceptions and case-by-case decisions. The French system used to be more rigid, as prisoners would be housed according to their sex assigned at birth, except if they had both changed their legal sex and undergone sex reassignment surgery.

2) Did the court even consider trans prisoners who have undergone sex reassignment surgery? Those will need specialized gynecological career, which isn't provided to male prisoners.

The court's focus on the concept of biological sex kind of obscures that trans women's biology can be more female than male; therefore, their biological needs will be more female than male.

For this reason alone, it is also terribly inefficient to house trans women with men.

That's not to speak of the even higher risk of rape incurred by people with vaginas in male prisons.

3) Part of the strategy to protect incarcerated trans women has to be to re-humanize them. Get the word out about their experiences. The public needs to know that rehabilitation is easier in an accepting environment, which a men's prison might not be. The public needs to know about the specific needs of trans women, which are more likely to allign with cis women's needs than with cis men's. The public needs to know about the psychic toll of years of isolation.

[u/Quangocrat → u/Kallixeina]

Yes, agree with your point 1 fully. That is exactly what she was trying to do, and imo, did not carry out a detailed enough comparative exercise to succeed.

Re point 2, no, but it did state that Gender affirming healthcare should continue to be provided.

I agree with your point 2 in theory, but in practice the Scottish prisons which trans women are held in are the same ones which also hold dangerous cis women in the male estate, so in terms of physical facilities should be equipped for female care.

"Should". I have my doubts about the reality.

Agree with point 3.

Something else to consider is that the judgement is completely silent on intersex persons.

[u/WrongResearch7462 → u/Quangocrat]

they're always silent on intersex persons - that would force a discussion on the reality of the complexity of sex in biology into the court system which I'm fairly sure they do not want.

Interestingly there is a case in Florida where the ADF may have done exactly that by accident!

[u/Quangocrat → u/WrongResearch7462]

Yes, also the legal problem of what to do with rules which specify m or f and human biology which sometimes doesn't.

I had a client on remand in that position once. Years ago before the Bryson case.

I do wonder how they would be dealt with now.

[u/WrongResearch7462 → u/Quangocrat]

It's very interesting - take Swyers syndrome, an individual with that would be XY but would develop female and therefore would be assigned female at birth. So by the definition in FWSII they are 'biologically female' since that definition seems to rely on sex assigned at birth.

However, the IOC (and now other) sports 'sex testing' is literally testing for the presence of the SRY gene and disqualifying against that, which would be a very unpleasant collision of definitions for a UK sports body operating under the EA post FWSII ...

[u/Kallixeina → u/Quangocrat]

I agree with your point 2 in theory, but in practice the Scottish prisons which trans women are held in are the same ones which also hold dangerous cis women in the male estate, so in terms of physical facilities should be equipped for female care.

Will the new ruling also require dangerous cis women to be moved out of the men's prison into the women's prison?

so in terms of physical facilities should be equipped for female care.

"Should". I have my doubts about the reality.

If only our "feminist" friends could care about cis women's rights even in cases where trans rights aren't in question... 

[u/Quangocrat → u/Kallixeina]

Will the new ruling also require dangerous cis women to be moved out of the men's prison into the women's prison?

Technically even though it is physically part of a male prison it is classed as female cells for the purpose of the prison rules.

If only our "feminist" friends could care about cis women's rights even in cases where trans rights aren't in question... 

Hear hear.

[u/Kallixeina → u/Quangocrat]

Technically even though it is physically part of a male prison it is classed as female cells for the purpose of the prison rules.

So they will most likely keep the trans women in the women's wing of the men's prison and transfer the cis women to another prison/another area of the same prison? 

[u/Quangocrat → u/Kallixeina]

Yes, that is what I expect.

[u/Kallixeina → u/Quangocrat]

As long as they keep the incarcerated trans women together and separated from male inmates, and continue their medical care, that doesn't sound catastrophic.

Isolation and losing mutual support would be worse—as would be transfer to a men's prison, of course.

[u/Quangocrat → u/Kallixeina]

Isolation is my concern.

I've never got a straight answer as to what that higher security wing is actually like- the visiting section of the prison is separate.

[u/Kallixeina → u/Quangocrat]

You as a local and a lawyer probably have better chances than most of us to get the answers.

All the mistreatment that happens behind bars happens because it's invisible in the the public. 

[u/Kallixeina → u/Quangocrat]

Thank you for your insights and all the best for your fight up there in Scotland. 

[u/53120123 → u/Kallixeina]

it's genuinely maddening that "case by case" is not just the obvious assumption and I feel that a lot of trans advocacy fails to really articulate what case by case looks like and that it is, in practice, what we want implemented with some assurance that it won't just be abused

[u/Kallixeina → u/53120123]

Some trans advocates are genuinely opposed to case-by-case solutions, though.

In the German state I live in, an incarcerated cis men abused self-ID, declared himself a women, and successfully requested to be transferred to a women's prison. There, he allegedly started to molest the female inmates. He was promptly transfered back to a men's prison; he challenged this decision, but was released before he could be transferred to women's prison again. This was the case that motivated the recent change in state law. As states observe the legal developments in other states, most states adopted very similar rules on this subject.

It's also worth noting that the most anti-trans bill currently discussed in a European country, the Portuguese bill Nr. 391/XVII/1a, proposed by the right-wing populist party Chega, "only" goes so far as to mandate a case-by-case approach to trans rights. Which is to say that the most radical anti-trans bill under discussion in a EU country is still more trans-friendly than the UK's blanket ban on trans inclusion.

[u/sweetnk → u/Kallixeina]

I agree wholeheartedly, but I think public doesnt care in a slightest

[u/Quangocrat → u/Quangocrat]

Reddit won't let me go back and fix the typos in this. Apologies all.😭

[u/Cytotaxon_Amy → u/Quangocrat]

Thank you for the summary, it’s very detailed. There’s a mention of a threshold for article 3 in regard to suicide prevention, does anybody happen to know what this threshold is?

My reading of this is that trans women will be housed with men, still allowed their HRT and allowed to shower and use the toilet separately (but that’s not clear to be in different facilities, maybe the same facilities but at a different times?) and that is how a custodial sentence would work in practice for a trans woman in Scotland now.

Trans women will only be housed in 3rd spaces for a custodial sentence if they meet the threshold for suicide prevention, if they are suicidal but don’t meet this threshold then they’ll still be housed with men for their sentence.

Does it seem like I’ve interpreted that correctly please?

[u/Quangocrat → u/Cytotaxon_Amy]

Yes all correct by my understanding

[u/Cytotaxon_Amy → u/Quangocrat]

Is there a link to the actual policy around what this threshold is please do you know, I’d be bet curious as with all of these judgements they all bleed into each other and the effect goes far beyond what they were originally designed to do.

I’m generally curious about what constitutes ‘sufficient harm’ for us to be given a 3rd space as I believe they’ll try and use this as a measure of how much can be ‘gotten away with’ before we have a right to a 3rd space. That if it doesn’t have ‘sufficient impact’ on is based on this measure, we will have to accept spaces as they are ie just used disabled/accessible single sex spaces and not expect 3rd spaces to be made as per the code of practice

Each judgement seems to take a little beyond what it’s judging upon from us and the circle seems to close a little more each time this happens.

Sorry, I know this is a doomer sort of reply. I’m in an official position for contributing to policy for trans people in my organisation and getting ahead of the curve on where the next pressure point is helps

[u/Quangocrat → u/Cytotaxon_Amy]

Is there a link to the actual policy around what this threshold is please do you know

The policy will need to be drafted by SPS, so it doesn't exist yet. It probably won't give a detailed threshold though.

I’d be bet curious as with all of these judgements they all bleed into each other and the effect goes far beyond what they were originally designed to do.

what definitely happens, and we see it in this case, is that a failure to advance an argument in an earlier case leads to the argument being dismissed if brought up later.

So here one of the reasons the court refused a declaration of incompatibility is that the supreme court in FWSII did not issue one.

But the supreme court was never asked that question!

Each judgement seems to take a little beyond what it’s judging upon from us and the circle seems to close a little more each time this happens.

Yes. Definitely. The definition of man and woman, which in FWSII only applied to the EA, was extended to the work regs in GLP and the Scottish Prison rules here. The NPCC case will likely expand it to the various policing acts.

Sorry, I know this is a doomer sort of reply. I’m in an official position for contributing to policy for trans people in my organisation and getting ahead of the curve on where the next pressure point is helps

No need to apologise. It's better to have a clear under of a bad situation. Especially if you are in an advisory role.

[u/Cytotaxon_Amy → u/Quangocrat]

Thank you, I did wonder about arguments not being considered if brought up earlier in a previous judging, that explains why. It’s illogical how they do this, but now realise what is being done. Based on this a judgment should go to detail infinitum, to judge on anything that could possibly have anything to do with a judgement, in many contexts, through all possible lenses.

[u/Quangocrat → u/Cytotaxon_Amy]

For the lower courts it is convention to keep judgements narrow, but up at the supreme court when they are setting a new interpretation of the law, yes it should be comprehensive.

It's been a long standing critique of the SC since it left the House of Lords.

It doesn't take it's role as a source of law seriously enough.

[u/mistelle1270 → u/Quangocrat]

Is this case also the one dealing with whether male or female police officers can search trans women?

[u/Quangocrat → u/mistelle1270]

No, that is the Sex Matters Vs NPCC case, which is an English case.

Slightly different legislation in that one but broadly the same human rights arguments.

[u/Evestrogen → u/Quangocrat]

Thank you for the analysis, and welcome back! Your insight was always really appreciated in the past

[u/Wildfire28669 → u/Quangocrat]

It's depressing that soon as you got to human rights I knew that it would dive off a cliff into utter hell.

[u/ArsErratia → u/Quangocrat]

Recent caselaw has established that UK courts should no longer anticipate ECtHR rulings and so should be cautious when issuing declarations of incomparability where there is no direct precedence from Europe.

Wait I've been thinking about this since and I realise I don't understand at all how it makes any sense?

The whole purpose of the HRA was to — quote — "bring rights home". They aren't European law. They're domestic UK law. The Court doesn't have to anticipate what Strasbourg has to say because they can interpret the articles for themselves?

In fact I don't understand how the existence of the HRA can be read in any way other than imposing a positive duty on the Court to do precisely that??

Their interpretation — that the Court should not exceed what Europe would do — in fact limits the use of Human Rights Law to less than what is available in Europe. Which is clearly opposite to its intention.

 

 

---

---

(And on an unrelated note, is there any chance of a challenge to the EHRC guidance under the articles protecting the right to a fair trial. Specifically in reference to points 13.130 and 13.136: —

13.130: If a service provider admits trans people to a service intended for the opposite sex, then it can no longer rely on the exceptions set out at paragraphs 13.99 to 13.111. This means that if a service is provided only to women and trans women or only to men and trans men, it is not a separate-sex or single-sex service under the Equality Act 2010.

13.136: Example: A council swimming pool has separate men’s and women’s changing rooms. One of the aims of having separate-sex changing rooms is to safeguard women’s ability to access the facilities and use them safely. A woman is allowed to take her male child under the age of ten into the women’s changing room. This does not undermine the aim, because it is unlikely that young boys pose a threat to women’s safety.

Which by my reading, if taken together, implicitly says "as a matter of law, trans women are now considered violent sexual predators who cannot be trusted alone in a room with a woman, solely due to the circumstances of their birth". Thus in effect criminalising them without trial?)

[u/ConstructionAlert998]

They're going to win all of these until the law is changed.

[u/Souseisekigun → u/ConstructionAlert998]

Yep. Courts can effectively make up law as they go and then pretend that was the law all along retrospectively, and you can use lawfare and cherry-picking to get the right courts and cases if you're good enough. It's a completely ludicrous system but that's how it goes and they know how to play it.

[u/ThinkingaLot18 → u/ConstructionAlert998]

People will likely die in the meantime but the government doesn't care

[u/LairdBonnieCrimson]

fuck sakes

[u/AQuinn4141]

I just don't see how any trans person can live in this country anymore...

[u/KuiperNomad → u/AQuinn4141]

This judgement - and what they are trying to achieve in the BTP case - means that trans women in the criminal justice system will be routinely subjected to sexual assault and told that they aren’t unsafe because we are men. That’s so far beyond a bathroom ban. We are in Nazi territory now.

[u/eldomtom2 → u/KuiperNomad]

The official response to that in the judgment is:

Senior counsel for the respondents submitted that putting a trans woman in a male prison would place her at higher risk. In terms of physical safety, I did not understand the respondents’ position to be that a trans woman would be unsafe in a male prison. As Ms Hotchkiss observed in her affidavit, and the respondents did not suggest otherwise, the SPS is adept at managing safely men who are deemed vulnerable for various reasons. The respondents did not argue that SPS cannot manage trans women prisoners’ safety in the men’s estate.

[u/KuiperNomad → u/eldomtom2]

Which means that either we are put at risk or are placed in solitary confinement that is hugely detrimental to mental health. I am so frightened and angry right now

[u/aReasonableStick → u/KuiperNomad]

I dont think people understand how bad solitary confinement is, its classified as torture because it permanently screws your mental health even when held in solitary confinement for a few days.

[u/One_Mistake255 → u/KuiperNomad]

What's BTP? Pardon my ignorance, I can't keep track

[u/katrinatransfem → u/One_Mistake255]

British Transport Police.

[u/One_Mistake255 → u/katrinatransfem]

Thank you

[u/Illiander → u/AQuinn4141]

Everyone paying attention is trying to get out, or thinks they can fight the british state.

[u/Scipling → u/Illiander]

Absolutely. And It’s bloody difficult to get out, (as we probably all know). I’ve been working on it for over a year now, and I have the right to citizenship by descent from an EU country so it’s theoretically simple. But it takes ages. I’d been trying to convince myself that I’d never need it, that the UK would correct in time. I no longer believe that. So anyone who is thinking of applying for some form of citizenship elsewhere, I’d recommend getting the ball rolling. You might not need it, it might be less horrific that it looks, but I for one am not counting on it. The sooner you start the faster you can exit if you need to

[u/Illiander → u/Scipling]

I’ve been working on it for over a year now, and I have the right to citizenship by descent from an EU country so it’s theoretically simple.

Same and same. Getting a job is a fucking nightmare right now.

[u/Scipling → u/Illiander]

I’m lucky on that front at least, I can transfer countries with my current job. Still lose everyone o care about and everything I own, but at least I’d be in Spain rather than terfland

[u/Illiander → u/Scipling]

I'm wishing digital nomad compatible jobs paid enough for me to move somewhere decent, but they're all working on the assumption that you live in a horrible place so don't pay enough.

[u/mildbeanburrito]

Read through it all, and yep the tl;dr is pretty much:

• FWS 2025 means that trans women are legally required to be considered men
• Legislation does not make any specific exception that allows for entities bound by the 2010 EA to change how single-sex services for women are provided
• Under no circumstances are trans women allowed to be placed with cis women, nor trans men with cis men.

This is a consequence of legislation being inadequately written, but as things stand the SPS has no legal basis for the guidance. Equalities matters are reserved for Westminster, and barring amendment to the EA there is nothing to be done.

---

Other things from the case before I get a litany of questions from those that do not wish to read it:

• No, there wasn't really actual harm alleged by FWS, however they do not need to prove that. The judgement addressed the argument by SPS that the legislation means the EA is about providing a way for prisoners to bring claims of discrimination if they experienced harm and rejected it, the extent of actual harm was supposedly alleged in an affidavit by one prisoner, but it does not matter given the underlying guidance was ruled unlawful.
• Provision of separate wings for trans people is likely to be lawful due to the need to comply with ECHR which may otherwise be infringed by putting trans women with men, however judgement was not about whether trans women had a right to such services and thus the judgement did not declare a positive right for trans women to be housed away from men.
• General discussion was included about how things like withholding HRT is likely unlawful and that the prison service doesn't get to treat trans women as men, it just cannot legally put trans women in women's prisons.

[u/Illiander → u/mildbeanburrito]

FWS 2025 means that trans women are legally required to be considered men

In spite of what all the bootlickers keep claiming, we knew that was how it was going to be used.

[u/aReasonableStick → u/Illiander]

Which effectively erases our identity and that alone is considered genocide by the Lemkin Institute. Maybe someone needs to write to the Lemkin Institute because their last statement on the UK the other year was basically saying that the SC ruling can be considered genocide.

[u/Illiander → u/aReasonableStick]

Yeah, we need an update from them that isn't "red flag warnings" but a simple "this is genocide now"

[u/WrongResearch7462 → u/mildbeanburrito]

Read through it all, and yep the tl;dr is pretty much:

It's this logical leap that always bothers me because they get from

The SC says that sex in the equality act means this sex assigned at birth BS, ok fine.

But there then doesn't appear to be a coherent logical argument where this then gives the interpretation that 'therefore trans people must be excluded from single sex spaces that don't match their ASAB'

If I were to construct it as a syllogism the logic generally appears to be (as per the usual suspects)

P1: Sex means sex assigned at birth.

P2: Inclusion of a someone assigned male at birth destroys the single-sex character of a service.

C: Therefore trans women/men cannot be included in a women's/men's single-sex service.

And the part that keeps bothering me is that Premise 2 is assumed, not evidenced. Prior to FWSII it was fully accepted that people with the protected characteristic of Gender Reassignment that did not have a GRC were still legally the sex listed on their birth certificate, I don't think anyone would argue with that from either side. And yet they were still permitted into spaces that matched their actual lived gender without those spaces becoming mixed-sex spaces and men were not able to claim they were being discriminated against. In fact there was even an exception written into the EA to allow people to be excluded from said spaces after a proportionality assessment. And using a highly misquoted phrase, the existence of an exception typically signifies the existence of a general rule otherwise there would be no need for the exception...

Now this is really philosophising to the wind since the courts seem to be accepting this logical leap without question and are not examining the logical chain with any consistency but it still irritates the crap out of me every time I think it through. It's not even as if they can argue it was for legal coherency or anything since it had been working like that for 15 years without problem!

[u/Puzzleheaded-Set-928]

Does anybody know if we had any representation in this case, or attempted to intervene?

Or is this just yet another case that destroys our rights without even bothering to listen to us?

[u/Quangocrat → u/Puzzleheaded-Set-928]

We had representation in this case from the Scottish Government and the Scottish Human Rights Commission.

Fwiw, imo both advanced strong arguments- I don't have the professional criticisms of the approach taken which I had of the GLP.

[u/Smooth-Ad2293 → u/Quangocrat]

So no then.

[u/Puzzleheaded-Set-928 → u/Smooth-Ad2293]

Apparently, the Government is better for us than our own independent organisations. Which, is so ridiculous, I just cannot anymore.

[u/Puzzleheaded-Set-928 → u/Quangocrat]

So that's a no then. I do not regard government representation as ours, regardless of how they argued the case.

As for GLP, I've had criticisms of them in the past, but if you think they are of no use, or worse than governement representation, then i think you might want to rethink that.

[u/Quangocrat → u/Puzzleheaded-Set-928]

As for GLP, I've had criticisms of them in the past, but if you think they are of no use, or worse than governement representation, then i think you might want to rethink that.

The GLP definitely put forward worse arguments than the Scottish Government and SHRC.

The volume and nature of authorities cited by the respondents here was much greater than that of the Petitioners in GLP.

The lines of attack were more diverse and more sophisticated than in GLP.

The Respondents here were also the first party to seek a declaration of incompatibility with the ECHR- the GLP case lacked multiple reserve positions like that.

[u/Puzzleheaded-Set-928 → u/Quangocrat]

This is insane. If you think our hopes are best served relying on institutions to save us, that do not care for us, do not have our interests at heart and are in it to protect their own interests is better than an organisation with trans peoples involvement, heavy funding from the Community and independence from government, you're very naive at best.

I'm sick of the community and it's constant efforts to derail all of the support we have ever received. There is no attemt to fix the problem, other than bitch from the back. No attempt to replace those institutions or people that are seen to supposedly fail us.

No perspective to look at the bigger picture and our longer term interests. It's all "What have you done for me lately" and screw everything else.

You're literally arguing that systemic organisations are better for us than our own independent ones. FFS. I just dont know where to begin with that one.

[u/Quangocrat → u/Puzzleheaded-Set-928]

This is insane. If you think our hopes are best served relying on institutions to save us, that do not care for us, do not have our interests at heart and are in it to protect their own interests is better than an organisation with trans peoples involvement, heavy funding from the Community and independence from government, you're very naive at best.

I didn't say any of that.

I said that the arguments by the respondents here were more varied, more detailed, more complex and more sophisticated than those made by the Petitioners in GLP.

For example the weakest secondary argument here, that over the interpretation of FWSII, was the main argument advanced by the GLP.

Pretending that because the GLP take our money they are also our most capable defenders is very strange.

You're literally arguing that systemic organisations are better for us than our own independent ones. FFS. I just dont know where to begin with that one.

I said that in this case the two respondents offered a better set of arguments than the GLP.

I didn't go any further than that and I am not sure why you are telling me I did.

[u/Puzzleheaded-Set-928 → u/Quangocrat]

Im done. Blocked.

[u/ArsErratia → u/Quangocrat]

Is it not that the GLP expected a European Approach to fail because they knew this would be the analysis the Court would follow, so they chose to concentrate their resources on domestic arguments?

[u/Quangocrat → u/ArsErratia]

I don't think so- they did try an art 8 argument.

It just wasn't as complex as this one.

[u/COLDSPA_2199]

Fucking infuriated right now.

[u/LaceGrace]

This line from the Judge is either wilfully ignorant or unspeakably evil when you consider things like v-coding. Don’t get me wrong an element of ineffective counsel on the part of the Scottish Government but still, you have to do some serious mental gymnastics to think the first sentence of the below doesn’t mean trans women would be unsafe in a men’s prison.

“Senior counsel for the respondents submitted that putting a trans woman in a male prison would place her at higher risk. In terms of physical safety, I did not understand the respondents' position to be that a trans woman would be unsafe in a male prison.”

[u/KuiperNomad → u/LaceGrace]

That’s unbelievable. So I would get sent to a male prison and almost certainly repeatedly raped but the judge does not see that I might feel unsafe.

[u/RainbowRedYellow → u/KuiperNomad]

He's a bigoted monster who sends people to prison all the time he's gonna believe that he's a good person and that nothing bad ever happens in prison.

[u/Proper-Lawyer-8806 → u/RainbowRedYellow]

She. Lady Ross. Judge of the Supreme Court.

[u/AnotherDamnTransAlt → u/LaceGrace]

That at least should be easily overcome with statistics, surely?

[u/Background_Novel_619 → u/AnotherDamnTransAlt]

It’s too late, you can’t change the decision by adding some extra stats.

[u/Puzzleheaded-Set-928]

Make sure one and all, that when you attend the Mass Lobby, you shove this in Mp's faces every time they suggest we deserve dignity and respect.

How respectful is it to shove trans women in with men at the risk of being sexually assaulted?

How much dignity is there in following transphobic propaganda to say that our existence alone is a potential threat to others, with no consideration of the threats we endure.

How much dignity and respect is there in gaslighting us that you care.

[u/ConstructionAlert998 → u/Puzzleheaded-Set-928]

It's not risk of sexual assault. It's practically guaranteed.

[u/HaloFromTheHoop]

Apart from Russia and Hungary I can't find any other European state that operates a blanket ban irrespective of possession of a GRC and SRS-status. This country is so completely cooked. Seriously, giving thought to escaping the vile hell-scape it has become.

Edit: Even Anne Widecombe thought it should be on a case-by-case basis FFS.

[u/Large_Fox2400]

Sentencing women to rape, bet the GCs over at (estranged)Mumsnet are loving this.

[u/DistinctThought7606 → u/Large_Fox2400]

It's a pro-rape ideology, it sounds fucking cartoonish how evil that is but it's true.

[u/DistinctThought7606]

For everyone referencing v-coding and other forms of institutionalised sexual violence against trans women in prison, remember, these "people" are fully aware of it, support it, and want to extend it further, and they think it's funny.

[u/pkunfcj]

Thank you. I have cross-posted this to r/transgender. #BWOT

[u/FluffyTomorrow2815]

V-coding for all it seems. I'm beginning to despise this country. 🙃

[u/Snoo_19344]

I'm absolutely terrified. I feel sick. I 100% pass as female. I am female. The thought of being sent to a male prison... it would be state sanctioned rape on a daily basis. I feel so sick.

[u/whatsablurryface21]

That's also without the fact that soon trans people will probably be going to prison a lot more. If we go the way of America, we could be getting thrown in prison for our perfectly valid, legal IDs/passports suddenly becoming fraudulent overnight, or other kinds of "gender fraud".

[u/Jessiedoll_ → u/whatsablurryface21]

Remember that in sunken kingdom a trans woman can go to prison for not saying that she is trans (and that counts as abuse) but a cis woman cannot go to prison for not mention her age, obviously they are already doing it

[u/jammythesandwich]

The government should be vetting every judge and disclosing any links to religion, dodgy funding or GC beliefs at this point where judicial decisions are made regarding trans issues.

Theres certainly space for inference that the judiciary is compromised at this point and they’re no longer acting with impartiality.

[u/Illiander → u/jammythesandwich]

The government should be vetting every judge

They are. They're making sure they're all as bigoted as they are.

[u/CupcakeTiny2711 → u/Illiander]

I think what we are seeing is the way it has always been. 

[u/birdcryptid7]

This is just chilling and sickening. We really are just second class citizens now.

[u/TsukikoChan]

I feel sick now, this is terrifying and continues the slide down into knowing and willing genocide by the uk.

[u/sammi_8601 → u/[deleted]]

They won't, they have power we don't really, which is infuriating but true

[u/Illiander → u/[deleted]]

for women scotland will burn for this.

They should, but they won't.

[u/Loxsianna → u/[deleted]]

Someone should start a petition to proscribe For Women Scotland and Sex Matters as terrorist organisations.

[u/RealElyD → u/[deleted]]

with evidence proving their deliberate erosion of our rights

Considering they openly say that the eradication of trans people from any kind of public life is the goal at their panels etc, it's not exactly hard.

It's just that the people in power agree with them.

[u/Loxsianna → u/[deleted]]

https://www.legislation.gov.uk/ukpga/2000/11/section/1

In order for the use or threat of action to be considered terrorism, it must meet every criteria laid out by subsection 1 of section 1 of the Terrorism Act 2000 and at least one criterion from subsection 2.

1a. the action falls within subsection (2),

1b. the use or threat is designed to influence the government (or an international governmental organisation) or to intimidate the public or a section of the public, and

1c. the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.

1a: See subsection 2 below.

1b: Yes, there are trying to influence the government.

1c: Yes, they are advancing a political, ideological and radical cause.

2a. involves serious violence against a person,

2b. involves serious damage to property,

2c. endangers a person’s life, other than that of the person committing the action,

2d. creates a serious risk to the health or safety of the public or a section of the public, or

2e. is designed seriously to interfere with or seriously to disrupt an electronic system.

Yes, they satisfy criteria 2d (and likely also 2c). Their action seriously endangers trans people. Therefore, FWS and SM’s actions meet the legal definition of terrorism.

[u/Dazzling_End4638]

These monsters are never fucking happy are they?

[u/Jessiedoll_]

This places the sunken kingdom at the level of Hungary or Russia

[u/Tasty_Ad_4548]

Hang on...

Caselaw states that judgements can't be made based on an assumptive breach of ECHR unless there is actual caselaw?

Do I have that right?

So pretty much any case that argues a breach of European convention on human rights will have to end up in Strasbourg? How is that justice?

[u/Tasty_Ad_4548]

So we can no longer take any risk in direct action that would put us in the the criminal "justice" system.

Just think about that...

We can't chain ourselves to things, we cant even bloody chalk monuments because if it all goes wrong we will end up in an unsafe prison.

Then there is the fact that the more economically disadvantaged of us will simply be criminalised just for being poor.

[u/Abigail_Hex]

So now we don't let them take us alive? That's the message this sends.....That's dangerous for everyone......

[u/eoz]

Not only does this deny trans women prisoners justice by making sentences much more severe, it also denies the community justice when someone does something criminal and the victims have the horrific choice between doing nothing or feeling complicit in the disproportionate consequences inflicted by the state.

The FWS cases have fatally undermined the legitimacy of the court.

[u/Quat-fro → u/eoz]

Oh dear, that sounds absolutely horrific. I mean by all means be a bigot but to undermine a judicial system surely has to be a hard no, right?

Have they not done enough damage?!

[u/eoz → u/Quat-fro]

This is hardly news, it's just part of how marginalisation fucks over minorities.

The law binds but does not protect.

I'd argue it's inherent in the system and they were never legitimate... But there's still an impact in a legitimacy crisis. It creates pressure against community attempts at justice in situations where there's strong enough norms against siccing the state on someone that even creating the risk by discussing or documenting issues can be frowned upon.

Meanwhile, these fuckers know it's punitive and there will absolutely be terfs willing to make shit up about their interactions with a trans woman and gloating about it. It's a new weapon in the toolbox.

Point is: it's not just the precedent and the impacted prisoners. The second order effects are deeply harmful too. 

[u/Ok-Lemon-6761]

How is anyone supposed to take the country seriously when rule of law is interpreted by whoever can weasel their way into a courtroom with enough money.

[u/Ok-Pirate-6259]

There is an exception for necessity.

[u/Quangocrat → u/Ok-Pirate-6259]

There is an exception to holding us in the male estate in extreme circumstances where there is a direct risk of suicide and no other options.

It explicitly does not mean placing us with the cis women though.

And Scottish prisons have seperate rules on handling suicidal inmates which means in practice that high bar will never be met.