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Female prisoners are paying the price for an “Orwellian” Scottish government policy that allows some transgender inmates to be housed in female prisons, Scotland’s highest civil court has heard.
The campaign group For Women Scotland is challenging guidance that says trans prisoners should be housed according to individual risk assessment, which the group argues is contrary to the supreme court’s ruling on women-only spaces.
For Women Scotland brought the original challenge that resulted in last April’s landmark ruling that the definition of woman in equalities law refers to biological sex alone. The UK government is still considering new guidance on how public bodies and businesses should apply the ruling to the exclusion or inclusion of transgender women in women-only spaces.
Speaking on the first day of a judicial review at the court of session in Edinburgh, Aidan O’Neill KC challenged the Scottish government’s position that having a “blanket rule” for where prisoners are housed could contravene obligation under the European convention on human rights.
“There is no case law from Strasbourg which says that trans-identifying male prisoners have to be accommodated within the women’s prison estate,” he said. “What the Scottish ministers are asking the court to do is to go beyond where the European court of human rights has reached on this point”.
At the hearing before Lady Ross, O’Neill suggested that Scottish ministers were motivated by “political calculation”, saying: “What is happening here is that women in prison are being treated and used by the Scottish government in this case to be traded as pawns for political gain.”
The Scottish Prison Service (SPS) has confirmed that as of June 2025 there were 19 transgender inmates and that 80% of those were accommodated in prisons that aligned with their biological sex.
O’Neill said the policy meant that biological men convicted of serious violent offences, including murder, were being placed in jail alongside female prisoners, whom he described as “an ultra-vulnerable population”.
“It’s a policy which is based on institutional neglect of and contempt for women’s rights. It’s almost – if I can use Orwellian terms for it – Animal Farm-like. Women good. But men identifying as women better.”
He asked why the SPS, which was experienced in handling men who are deemed vulnerable for various reasons, did not have “special facilities” for trans prisoners. “It’s women who are paying the price again,” he said.
The Scottish Labour leader, Anas Sarwar, pledged before the hearing that he would act to ban transgender prisoners from women’s jails “within days” if he became first minister in May’s Scottish parliament elections.
The first minister and SNP leader, John Swinney, has previously said he acknowledged the strength of feeling on the issue, including among his own MSPs, but that it was his government’s responsibility to ensure policy was compatible with convention obligations.
The Scottish Prison Service adopted the current policy after public outcry over the case of a newly convicted transgender woman, Isla Bryson, who committed two rapes while living as a man, Adam Graham, and was initially sent to the women-only prison Cornton Vale for assessment.
