FWS v Scottish Ministers III – the judgment

Judgment was handed down by the Court of Session on Friday 19th June on For Women Scotland v The Scottish Ministers on the Scottish Prison Service Policy for the Management of Transgender People in Custody Operational Guidance.

[178] Sex segregation in prisons in Scotland is lawful. The statutory scheme, based on the EA 2010 and the 2011 Rules, requires separate prison accommodation for men and women. Following FWS 2, this means sex segregation in prisons according to biological sex.

[179] Insofar as the Prisons Guidance allows SPS to accommodate trans prisoners in prisons for the opposite biological sex, it is in conflict with the requirement that prison accommodation be provided separately for men and women. That constitutes a mis-statement of the law.

[181] All prisoners have rights under the European Convention on Human Rights. Trans prisoners have rights under Article 8, but this does not extend to a right to be accommodated in a prison for the opposite biological sex. Article 8 rights are qualified and there is a justification for maintaining sex segregation in prisons. The statutory scheme imposes a bright line rule and sex segregation in prisons does not admit of exceptions on the basis of Article 8 rights.

[184] In all the circumstances, the Prisons Guidance is unlawful and the petitioner is entitled to orders for declarator and reduction.

We are delighted to have won such a comprehensive victory. All the arguments from the Scottish Ministers were comprehensively rejected by the court, not least their claim that housing trans-identified male prisoners in the male estate would breach their Convention rights.

We hope that, in future, the Scottish Government will start to listen to us rather than the lobby groups who drafted these policies and have so egregiously misled MSPs and MPs.

We should never have needed to take this case and we hope this will be the last time that we are forced to go to law to defend the rights of women. Ultimately, this is a victory for the very vulnerable women in the prison estate.

Just over 200 years after Elizabeth Fry won rights for women in prison, we have established that the Scottish Government’s cruel policy of incarcerating women with violent male prisoners was never lawful. We are thrilled with the result, but it should never have come to this.

We are grateful to our brilliant legal team, Sindi Mules of Balfour+Manson, Tony Convery Advocate, and Aidan O’Neill KC.