On 19 June 2026, following an application for judicial review by the well-funded transphobic organisation For Women Scotland, the Court of Session ruled that the Scottish Prison Service guidance on transgender prisoners was unlawful. This followed the Supreme Court ruling in April 2025, which determined that ‘sex’ is defined as ‘biological’ sex rather than gender identity. For Women Scotland, and similar groups who claim to fight for women’s rights, have used the courts as a mechanism to attack the rights of transgender people and legally enforce a strict gender binary. Trans-gender prisoners are just the first victims of these attacks.
Previously, the Scottish Prison Service operated trans-inclusive guidance with trans prisoners able to be housed based on their gender identity following individual risk assessments. Judge Lady Ross has now ruled in favour of For Women Scotland, that this guidance is now unlawful in light of the Supreme Court ruling. New guidance was immediately put in place, creating strict directions that transgender prisoners must be housed in accordance with their ‘biological sex assigned at birth’. Transgender prisoners were rapidly relocated in compliance with this, with no arguments from the Scottish Government.
Since the Supreme Court ruling, we have seen consistent attacks on transgender people across Britain. In May 2026, new guidance was released by the Equality and Human Rights Commission (EHRC) which outlines banning trans people from single-sex spaces of their gender, forcing them into single-sex spaces of the ‘biological sex assigned at birth’.
Whilst the Scottish guidance follows the Supreme Court ruling, it may potentially conflict with the European Convention on Human Rights (ECHR) and thus be open to further legal challenge. The ECHR Article 8 outlines the right to private and family life. This has been held in immigration and other cases to include the right of LGBTQ+ people to live openly and without fear of persecution. The application of Article 8 is widely debated, with some arguing that as long as transgender prisoners are still ‘allowed’ to transition, this right would technically be upheld. However, this new guidance undermines transgender prisoners’ right to express their gender identity without fear of discrimination, as transgender prisoners will either be forcibly outed or compelled to live with devastating gender dysphoria.
Article 2 of the ECHR enshrines the right to life. With transgender prisoners being automatically placed in prisons of their sex assigned at birth, there can be an expected increase in violence towards transgender prisoners and rising rates of suicides as a result. One ‘solution’ being proposed is the creation of ‘third spaces’ to house transgender prisoners who are deemed to be at risk when housed in prisons of their sex assigned at birth. This could see transgender prisoners facing dehumanising conditions potentially being held in isolation in segregated trans wards with damaging mental health consequences.
This attack on trans prisoners sets a dangerous precedent, showing us all that our rights can be debated and withdrawn in courts, especially those who are most vulnerable in society. It also reinforces the structural violence imposed by the ruling class through the use of policing and prisons. While the state claims that prisons are there for rehabilitation or reducing crime, in fact they are used as a tool of the ruling class to discipline the working class. This includes enforcing institutionalised racism and a strict gender binary.
When trans rights are under attack, stand up, fight back!
Nancy Mays
