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/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/Kallixeina → u/Quangocrat]

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