FWS v Scottish Ministers III – the hearing
The substantive hearing for the judicial review of the Scottish Prison Service Policy for the Management of Transgender People in Custody – which permits prisoners with the protected characteristic of gender reassignment to be housed in a prison of the opposite biological sex – was heard in the Court of Session Outer House on 3rd – 5th February 2026.
The written submissions to the court can be found here but a brief summary of the arguments of each party are:
For Women Scotland:
- The Scottish Ministers are statutorily required to provide women-only prison accommodation, separate and distinct from that provided for male prisoners:
- The United Nations Standard Minimum Rules for the Treatment of Prisoners
Rule 11(a): “Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women, the whole of the premises allocated to women shall be entirely separate”. - The Prisons and Young Offenders Institutions (Scotland) Rules 2011
Rule 126(1): “Female prisoners must not share the same accommodation as male prisoners.”
- To fulfil this statutory duty, the Scottish Ministers must ensure no male prisoners are accommodated within the women’s prison estate (whether or not they claim the protected characteristic of gender reassignment or hold a gender recognition certificate). As the UK Supreme Court unequivocally stated (paragraph 171):
“[A] person is either a woman or a man. Persons who share that protected characteristic for the purposes of the group-based rights and protections are persons of the same sex and provisions that refer to protection for women necessarily exclude men.”
The Scottish Ministers:
- A blanket rule of separate sex prison accommodation would violate the rights of transgender prisoners under ECHR Articles 8 (respect for private and family life) and 14 (prohibition of discrimination) to be placed in a prison of the opposite biological sex (subject to individual risk assessment). [No Strasbourg authority is cited in support of this claim.]
- To prevent Convention incompatibility, Rule 126 of the Prison Rules 2011 would require to be read down in terms of Section 3, Human Rights Act 1998, or disapplied.
- Alternatively, if sex segregation depends on Schedule 3 of the Equality Act 2010 then prisons are provided “primarily” (rather than exclusively) for persons of the same sex. No unlawful discrimination is caused by housing transgender prisoners in the prison of the opposite biological sex. If that provision cannot be read in that way, a declaration of incompatibility in respect of paragraphs 26-28 of Schedule 3 should be made by the court in terms of Section 4(2) of the Human Rights Act 1998.
Live Coverage:
We were very fortunate that the hearing was covered live by Tribunal Tweets, The Herald, and journalist Nick Wallis, who has handily summarised each day as well as live tweeting:
Media:
07 February 2026, Times: Why is the SNP still fighting for a trans killer to be in a female jail?
07 February 2026, Times: Repellent policy on trans inmates shows SNP chooses men over women
05 February 2026: BBC News:
05 February 2026, Times: Segregated trans prison wings risk suicide, claims SNP government
05 February 2026 Times: Female inmate ‘threatened with sexual abuse by transitioning man’
05 February 2026, Telegraph: Biological sex is an ‘artificial parameter’ for prisoners, SNP claims
05 February 2026, Herald: Government in suicide warning over trans prisoner challenge
05 February 2026, BBC News: Suicide risk if trans prisoners are put in jails based on sex at birth, court told
05 February 2026, Guardian: Blanket rule on trans women in men’s prisons would deny their identity, says Scottish government
05 February 2026, Scottish Daily Express: SNP Government ‘want to do best’ for all prisoners by letting men stay in female jails
05 February 2026, Daily Record: Judge rises to consider ‘complex’ arguments in trans prisoner legal challenge
04 February 2026: BBC Reporting Scotland:
04 February 2026, Times: Men could choose ‘lovely’ female prisons under Scottish trans policy
04 February 2026, Scottish Daily Express: SNP’s claim that banning men from female prisons breaches their human rights dismissed by equality watchdog
04 February 2026, LBC: Women’s rights ‘not breached’ if men are placed in female prisons, court told
04 February 2026, Telegraph: Biological males could demand to serve sentences in ‘lovely’ women’s jails, court hears
04 February 2026, Herald: Key points: Human rights bodies disagree on trans prison policy
04 February 2026, Herald: UK equality watchdog warning on trans prison policy
04 February 2026, Standard: Trans prisoner guidance could lead to ‘mixed sex provision’ – EHRC
04 February 2026, Standard: No automatic breach of rights from trans women in female prisons, court told
03 February 2026, BBC Reporting Scotland:
03 February 2026 ITV Good Morning Britain (with Rhona Hotchkiss):
03 February 2026, Times: SNP ‘uses women as pawns’ in trans prisoner row
03 February 2026, Times: Equalities watchdog rejects SNP claims over trans prisoners’ rights
03 February 2026, STV News: Why is the Scottish Government being challenged in court over trans prisoners?
03 February 2026, Telegraph: SNP’s trans prisons policy treats women as ‘pawns’
03 February 2026, Sky News: Woman prisoners ‘traded as pawns for political gain’ by ‘Orwellian’ Scottish government policy, court told
03 February 2026, BBC News: Woman prisoners ‘treated as pawns’ by Scottish government, court told
03 February 2026, Herald: Hotchkiss: Trans prisoners pose ‘serious risk’ to women
03 February 2026, Herald: Women treated as ‘political pawns’ in trans prison row
03 February 2026, Scotsman: SNP using women as pawns with Orwellian trans prison rules, court told
03 February 2026, Guardian: Campaigners challenge Scottish policy on transgender inmates in female prisons
03 February 2026, Daily Record: Scottish Government taken to court over trans prisoners policy: All you need to know
02 February 2026, Times: Anas Sarwar: I’d ban men in female prisons within days of winning power
02 February 2026, Daily Record: Trans prisoners to be banned from female jails if Scottish Labour wins election
01 February 2026, Herald: How For Women Scotland’s trans prison challenge could fail
28 January 2026, Herald: What is the transgender prison policy row in Scotland?
28 January 2026, Herald: Angela Constance defends Scottish Government on women’s rights
27 January 2026, Times: Ministers ‘tried to silence’ prisoner who shared jail with trans women
27 January 2026, Herald: SNP ministers accused of contempt in transgender prison case
25 January 2026, Holyrood: John Swinney is allowing the trans prisoners row to become an election issue
22 January 2026, Herald: ‘The Government’s prison policy leaves vulnerable women unprotected’
21 January 2026, Scottish Daily Express: Holyrood’s Presiding Officer ‘disgracefully shields’ SNP from questions about men being housed in female prisons
20 January 2026, Times: SNP ministers warn of suicide risk for transgender prisoners
20 January 2026, Telegraph: ECHR means trans prisoners can’t be banned from women’s jails, claims SNP
20 January 2026, BBC News: ‘Blanket rule’ for trans prisoners would violate rights, ministers to argue
20 January 2026, Scotsman: Trans prison ban would violate human rights, says Scottish Government
20 January 2026, Herald: ‘Human rights breach’ warning with trans prison policy
15 January 2026, Times: Swinney refuses to say whether trans killers are men or women
15 January 2026, Times: Swinney gaslights Holyrood’s ‘little women’ on single-sex spaces
15 January 2026, Holyrood: ‘Appalling’: SNP MSP hits out at Scottish Government’s single-sex prisons stance
15 January 2026, Herald: John Swinney told SNP MSPs ‘appalled’ by trans prison policy
08 January 2026, Times: John Swinney buries any hopes of an answer on trans prisoners
08 January 2026, Times: Trans inmates left ‘sexless’ if banned from women prisons, say ministers
08 January 2026, Herald: Swinney dismisses confusion over For Women Scotland case
07 January 2026, Times: SNP in secret attempt to challenge Supreme Court ruling on sex
18 December 2025, Times: More public money on legal fight over trans women in female jails
26 November 2025, Times: SNP fights to keep trans women in female prisons despite EHRC ruling
19 November 2025, Times: Scottish ministers ignored warnings about trans prisons policy
11 November 2025, Scotsman: SNP Justice Secretary Angela Constance accused of misleading Parliament on trans prisoners debate
05 November 2025, Times: SNP court battle to allow trans women in female prisons