THE SNP Government asked its UK counterpart for advance sight of watchdog guidance on sex and gender as it was facing a court case over its policy on trans prisoners, documents released in response to a Freedom of Information (FOI) request have shown.
Social Justice Secretary Shirley-Anne Somerville wrote to UK Education Secretary Bridget Phillipson – who is also the Equalities Minister – on September 4, 2025 asking to see the Equality and Human Rights Commission’s updated guidance in the wake of the Supreme Court ruling that sex in the 2010 Equality Act refers only to biological sex.
Somerville wrote: “While the Scottish Government is taking the detailed work necessary as a result of the Supreme Court judgment in For Women Scotland Ltd vs Scottish Ministers, it is vital that Scottish Ministers have sight of the updated Code of Practice as we continue [to] review and update policies, guidance and legislation in a timely manner.
READ MORE: Anas Sarwar says he'd ban trans prisoners from women's jails
“Having sight of the updated Code of Practice will ensure that the Scottish Government’s approach to complying with the judgment is in line with the guidance provided by the EHRC, the regulators of the Equality Act 2010.”
The EHRC guidance was submitted to the UK Government on the following day, September 5. It has not yet been published, however, with The Guardian reporting last week that it is being adapted from the previous draft in order to better balance single-sex spaces against the rights of trans people.
On Tuesday, a legal challenge against the Scottish Government’s policy on transgender prisoners began at the Court of Session in Edinburgh. For Women Scotland are suing, claiming it is unlawful for trans women to be housed in the female prison estate regardless of circumstances.
However, the Scottish Government has argued that there is a “well-founded concern that being required to adopt a policy that a transgender prisoner can never be held in a prison for the opposite biological sex could give rise to an unacceptable risk of harm”.
While hearings began this week, the court case was made public on August 16, around three weeks before Somerville’s letter to Philipson.
The letter was published in response to an FOI request for correspondence between the UK and Scottish Governments “on the topic of the case of For Women Scotland v the Scottish Government”.
Other files released, like the first two paragraphs of Somerville’s letter, are largely redacted. However, it can be seen that officials exchanged emails on September 17, 2025, to discuss NHS England’s policy on accommodating trans people.
A link to an NHS England webpage on “delivering same-sex accommodation” was shared, with the page stating: “Trans people should be accommodated according to their presentation: the way they dress, and the name and pronouns they currently use.
“This may not always accord with the physical sex appearance of the chest or genitalia.
READ MORE: Tories fume as new equalities chair warns against 'demonisation of migrants'
“It does not depend on their having a gender recognition certificate (GRC) or legal name change.
“It applies to toilet and bathing facilities (except, for instance, that pre- operative trans people should not share open shower facilities).
“Views of family members may not accord with the trans person’s wishes, in which case, the trans person’s view takes priority.”
At the Court of Session, the Scottish Government is arguing that a “blanket rule” stating that a “transgender prisoner can only be placed in the prison according to their biological sex would violate the rights of some prisoners”.
It added that placing prisoners in a prison for those of the opposite biological sex may be required to prevent a violation of the Human Rights Act.
The Scottish Government’s legal arguments said: “The placement of those prisoners has not given rise to any significant operational issue in the prisons in which they have been detained.”
It stated that the types of prisoner who have been placed in a prison for the sex opposite to that which they were born into included inmates with a gender recognition certificate, those who have lived in their acquired gender “for decades” and a “transman of masculine appearance”.
However offenders are not placed in a prison “solely on the basis of those personal attributes”, the paper said, adding that an “individualised assessment” is carried out in line with prisons guidance.
READ MORE: Cabinet Office call in police after Peter Mandelson's email 'leaks' to Epstein
This guidance, it added, was “informed by evidence” that there is both an increased risk of suicide in an inmate’s first three months in custody, and also a “known increased risk of suicide for transgender individuals”.
For Women Scotland previously said: “The Scottish Government’s argument makes a great deal about the supposed human right of male prisoners to be placed in the female estate but, apparently, they have not considered that women also have rights.
“Article 3 protects everyone from torture, inhuman treatment, or degrading punishment, yet women in Scottish prisons are routinely subject to boundary violation and physical or mental abuse from the men they are locked up with.”
Share