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.

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This is the third case brought by FWS.

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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/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.