THE idea that the “mere presence” of a trans woman in a female prison automatically breaches others’ human rights “should be rejected”, Scotland’s human rights agency has told a court.
The Scottish Human Rights Commission (SHRC) was intervening in a case brought against the Scottish Prison Service (SPS) by campaign group For Women Scotland (FWS) over its policy of holding some trans women in the women’s prison estate.
The petition for a judicial review of the policy is being heard at the Court of Session in Edinburgh. On Wednesday, FWS’s legal team set out why it wants the current SPS guidance document to be set aside.
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The group won a Supreme Court case in April last year, with judges at the UK’s highest court ruling that “woman” in the Equality Act refers to a biological woman, regardless of their gender identity.
The Scottish Government has argued 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”.
On Wednesday, Kenny McBrearty KC spoke on behalf of the SHRC. He stressed the independence of the agency, saying it was not “in the pocket” of either FWS or the Government, and that its intervention is not in support or opposition to either side.
McBrearty KC said: “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.”
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He said the suggestion that the “mere presence” of a trans woman on the female estate “automatically represents an unlawful interference with female prisoners’ convention rights should be rejected”.
The KC 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.”
A lawyer for the Equality and Human Rights Commission (EHRC) also intervened in the case.
Janys Scott KC, acting for the EHRC, said that placing trans women in the female prison estate was “likely to result in mixed-sex provision”.
She continued: “If biological men are admitted to a service alongside women, there will be a joint service.”
The KC went on to set out what she sees as the flaws in the current guidance, saying: “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.”
Earlier, Tony Convery, advocate for FWS, discussed the current SPS guidance document on the management of transgender prisoners, claiming the document is “materially misdirecting” SPS staff.
He added: “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 hearing, taking place before Lady Ross, continues.
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