The UK's equalities watchdog has warned that Scotland's current policy on transgender prisoners could lead to "mixed-sex provision" in women's facilities, as a judicial review of the Scottish Prison Service (SPS) guidance continued at the Court of Session in Edinburgh on Wednesday.
The Equality and Human Rights Commission (EHRC) called for a reconsideration of the policy, with Janys Scott KC arguing that allowing biological men into women's prisons creates fundamental problems. She told the court: «If biological men are admitted to a service alongside women, there will be a joint service.»
Scott highlighted potential exploitation of the policy, warning: «You could simply have a man (prisoner) who says 'the new women's facility in Stirling looks lovely – why can't I go there?' "And you can't say it's because you're a man. "That's the difficulty the prison service is getting itself into if it continues to operate its current guidance.»
Human Rights Commission Disagrees
The Scottish Human Rights Commission (SHRC) took a different position, emphasizing its independence from both the campaign group For Women Scotland (FWS) and the government. Kenny McBrearty KC, representing the SHRC, rejected claims that trans women automatically violate female prisoners' rights.
He argued: «I would resist the notion that there is a positive obligation to place all trans prisoners within the estate that conforms with their biological sex – having regard to the article eight rights of women prisoners.» The suggestion that the «mere presence» of a trans woman «automatically represents an unlawful interference with female prisoners' convention rights should be rejected», he said.
McBrearty added: «The simple point is that a great deal may depend on the particular circumstances... "In my submission, it is going a very long way to say there will be a breach of article eight which will arise simply from the presence of any trans prisoner.»
Campaign Group's Challenge
FWS is challenging the SPS policy that allows some trans women to be housed in the women's prison estate. Tony Convery, advocate for FWS, argued the guidance is «materially misdirecting» staff.
He told the court: «They are led to believe that sometimes biological men can be accommodated in the estate for biological women... "For the reasons we set out yesterday, we believe this is unlawful.» The campaign group won a Supreme Court case in April last year, where judges clarified that "woman" in the Equality Act refers to a biological woman.
Government Defends Policy
The Scottish Government opposes a blanket ban on transgender inmates being placed in prisons other than those matching their birth sex. Gerry Moynihan KC, representing the government, argued that petitioners must demonstrate actual harm, not just differential treatment.
He said: «It is not simply a case of say, for example, a man and a woman are being treated differently. "It is necessary to show that difference in treatment entails less favourable treatment. That is what is absent in this case, for the petitioners. "Equally, if it's looked at as a case of harassment, so the policy is being measured relative to the potential to create harassment.»
The hearing before Lady Ross is expected to continue on Thursday.
Note: This article was created with Artificial Intelligence (AI).
