Introduction

On 19 June 2026, the Outer House of the Court of Session handed down judgment in the case of For Women Scotland v Scottish Ministers [2026] CSOH 59 (“For Women Scotland 3”). This piece is intended as a critique of that judgment, exploring the relevance of the Equality Act 2010 and the Schedule 22(1) exception, the interpretation of the Prison Rules and the role of the Gender Recognition Act 2004, and the Court’s approach to Article 8.

Case summary

For Women Scotland 3 was a petition for judicial review of a policy: the Scottish Prison Service’s non-statutory guidance on the Management of Transgender People in Custody. The claim turned on the policy’s provisions around the admission of trans women to the women’s estate, and of trans men to the men’s estate. In overview, the policy stated a trans woman should be considered for admission into the women’s estate unless she meets the “Violence Against Women and Girls Criteria” (mainly, whether she has been convicted of an offence involving violence against women or girls) or there was any other basis to suppose that she poses an unacceptable risk of harm to those housed in the women’s estates. A trans man should be considered for admission into the men’s estate only if there were no concerns of risk to his health, safety or well-being: otherwise he should be allocated to the women’s estate.

The Claimants challenged this policy as unlawful on the basis that a policy which admitted any trans women into the women’s prisons estate was unlawful. The claim proceeded on this general basis.

Lady Ross allowed the claim, holding that the statutory scheme required sex segregation, and that following the UK Supreme Court’s decision in For Women Scotland 2, this sex segregation had to take place according to “biological sex” (i.e. sex at birth). Insofar as the Guidance allowed the Prison Service to accommodate trans women in women’s prisons (or trans men in men’s prisons), it misstated the law. Lady Ross further held that the Prisons Guidance was outside the Scottish Ministers’ powers as it was “in conflict with the law for the time being relating to equal opportunities”. As for human rights, any interference in the Article 8 rights of trans prisoners was justified by a “bright line rule” that does not admit of exceptions. While in an exceptional individual case, it may need to be considered whether the rule should be disapplied because of a trans prisoner’s rights under Article 2 and Article 3, this could not form the basis of a general policy.

The case was heard without any interventions from trans prisoners or NGOs. The Scottish Government has stated it will not seek to appeal the decision.

Case comment

The case is the latest to emerge from the aftermath of the Supreme Court’s decision in For Women Scotland v Scottish Ministers [2025] UKSC 16 (“FWS 2”). There is a stark contrast between the Supreme Court’s comments in that case that its interpretation of the Equality Act 2010 “would not have the effect of disadvantaging or removing important protection under the EA 2010 from trans people (with or without a GRC)” (at §248), and this judgment, handed down just one year later, which appears to have led to the transfer of all trans women prisoners previously housed in the women’s estate into the men’s.

FWS 3 raises serious questions about the UK’s compliance with international human rights commitments. The issues in the case touch on equality, human rights and devolution law, and the Court’s approach appears to have been hampered by the parties’ difficulties in agreeing the issues to be decided or the contours of the dispute (§36). Nevertheless, in my view the judgment involves serious errors in approach on a number of critical issues that are of significant wider importance.

The case involved consideration of rule 126 of the Prisons and Young Offenders Institutions (Scotland) Rules 2011, which provides that:

“(1) Female prisoners must not share the same accommodation as male prisoners.

(2) The respective accommodation for male and female prisoners must, as far as reasonably practicable, be in separate parts of the prison.”

Accommodation means the “cells or rooms used to accommodate prisoners for living and sleeping purposes” (rule 2), and it was submitted that the inclusion of the words cells and rooms reflected the fact that historically, men’s prisons had “cells” and women’s prisons had “rooms”. However, the Court observed that the requirement in Rule 126 was broader than simply a prohibition on men and women sharing cells, because of the requirement in rule 126(2) (§59).

Relevance of Equality Act 2010

The Claimants argued that the policy was incompatible with the requirements of the Equality Act 2010, as it had been interpreted in For Women Scotland 2. The Scottish Government’s primary case appears to have been that this was not a matter that could be determined in the abstract. The Court considered the well-known principles from R (A) v SSHD [2021] UKSC 37 concerning the judicial review of policies and concluded that if the Ministers adopted a policy which, when implemented in individual cases, will result in a breach of the Ministers’ statutory obligations, then that policy may be challenged as being unlawful. (Alternatively, in the words of the Supreme Court in R (A) at §38: does the policy in question authorise or approve unlawful conduct by those to whom it is directed?) One question before the Court accordingly was whether the policy directed prison staff to take decisions that amounted to unlawful discrimination or other prohibited conduct within the meaning of the Equality Act 2010: in particular, would non-trans prisoners be able to make successful sex discrimination claims because of decisions to house some individual trans women in the women’s estate?

Significantly, the Court held that allocation decisions by the Prison Service were not the “provision of a service” within the meaning of section 29(1) of the EA 2010, but rather the exercise of public functions not amounting to the provision of a service within section 29(6) (§71). That is important because of the specific exception under Schedule 22 paragraph 1 which provides a defence to sex discrimination claims in the case of such public functions where a person does “anything they must do” pursuant to “a requirement of an enactment”.

In view of this conclusion, the answer to the claim that the Trans Prisoner Policy authorised or approved breaches of the Equality Act should have been clear. If a cis (non-trans) male prisoner wished to argue that it was direct sex discrimination for him not to be kept in a female prison because he was receiving less favourable treatment than a comparable female prisoner, the prison would have a defence: keeping him in the male prison was something that it was required to do pursuant to rule 126 of the 2011 rules. That requirement would apply equally whether or not the prison also accommodated trans women prisoners in the women’s estate, and so the defence would be available regardless of the terms of the Trans Prisoner Policy.

Interpreting rule 126: the role of the GRA

Accordingly, the key question ought to have been whether the Trans Prisoner Policy authorised or encouraged conduct which was unlawful in breach of Rule 126. The Outer House spent little time considering the meaning of this provision, merely stating at paragraph 78:

The respondents did not argue that the reference to prisoners in rule 126 should be understood in any way other than by reference to biological sex. This is an enactment read with section 29 of and Schedule 22 to the EA 2010 and any alternative reading would be impossible following FWS 2.

This is a problematic passage. Section 9 of the Gender Recognition Act 2004 (“GRA 2004”) does not feature in the Court’s reasoning. FWS 2 was of course expressly limited to the meaning of sex only in the Equality Act 2010 (see the Supreme Court’s comments at §2). The default position for other legislation remains the rule in section 9(1) of the GRA 2004, that a trans person’s sex becomes their acquired sex for all purposes upon being issued a full gender recognition certificate (“GRC”), unless the legislation expressly or by implication provides otherwise (section 9(3)). It cannot be enough, as the Outer House seemed to consider, for the legislation in question to be “an enactment” read with section 29 of and Schedule 22 to the Equality Act 2010. That approach does not seem to impose any test at all: it is hard to see what would not be an enactment. Nor does it reflect the Supreme Court’s approach in FWS 2 of considering whether there is a clear incompatibility, or an interpretation which would lead to unworkable or incoherent outcomes if the rule from section 9(1) GRA 2004 were applied, because these results would be unlikely to have been intended by the legislature (FWS 2 at §160).

In the case of 2011 Prison Rules, there are strong reasons to think that references to sex in rule 126 were intended to refer to a trans person’s “certificated sex”, rather than their sex at birth. Rule 126(1) does not compel the prison estate to place any prisoner (trans or otherwise) in a room with any other prisoner: the right it creates is a negative one. Rule 126(1) effectively grants the prisoner a right not to share a room or cell with a person of the opposite sex. For many trans women, being required to share a cell with a male prisoner will be just as humiliating and frightening as it would be for a cis woman. In a country that has established a gender recognition system to formally recognise those trans women as women (based on medical diagnosis and experience of living in the acquired gender etc), one would expect that the legislature would intend to extend the same right to trans women on an equal basis.

Further, this interpretation is strongly supported by the history of accommodating trans people in prison in the UK. The Scottish Prison Service stated that it believed decisions to place trans people “in an estate which does not align to their biological sex” had operated since at least 2006 (§30), though in fact the practice appears to be older, predating the GRA 2004. In I v United Kingdom (2002) 36 EHRR 53, the case handed down together with the better-known Goodwin decision, the Grand Chamber discussed the UK’s treatment of trans prisoners. It noted the Report of the Interdepartmental Working Group on Transsexual People’s finding that:

The criminal justice system (i.e. the police, prisons, courts, etc.) try to accommodate the needs of transsexual people so far as is possible within operational constraints. A transsexual offender will normally be charged in their acquired gender, and a post-operative prisoner will usually be sent to a prison appropriate to their new status.

In I, one of the applicant’s complaints was that the existing prison rules would permit her to be sent to a male prison and would not prohibit her from being stripped and searched in the presence of a male person (I at §44). (She also complained that she may be placed on a male ward in hospital, the matter being at the hospital’s discretion.) The UK Government defended the case partly on the basis that the flexibility of the policy position as to which prison a trans prisoner would be sent to meant that there was no breach of Article 8, and because in reality, the Claimant likely would be placed on a female hospital ward should she need to attend hospital (I at §48). The Grand Chamber rejected the UK Government’s arguments and found, in similar terms as it found in Goodwin, that the UK was in breach of trans people’s article 8 rights. It noted the stress and alienation which the legal regime caused to trans people, and the conflict between social reality and law which placed trans people in an anomalous position giving rise to feelings of vulnerability, humiliation and anxiety (I at §57). It noted the unsatisfactory nature of the position of trans people in the UK and cited the Working Group’s conclusion that, notwithstanding the accommodations reached in practice, trans people were “conscious of certain problems that did not have to be faced by the rest of the population” (I at §59).

At the time of the decision in I and the passage of the GRA 2004, the relevant rule in Scotland was rule 114 of the Prison and Young Offenders Institutions (Scotland) Rules 1994, which provided that:

Female prisoners shall be accommodated in rooms or cells which are entirely separate from rooms or cells used for the accommodation of male prisoners.

If, prior to the passage of the GRA 2004, the policy position was to place trans women who had had gender reassignment surgery in women’s prisons, then it is difficult to argue that Parliament intended the 1994 Prison Rules to be exempt from section 9(1) of the Act to permit a system of segregation based on “biological sex”. It would invert the GRA from a piece of progressive legislation for trans people to a regressive one, certainly in the prisons context. The intention behind the passing of the GRA 2004 was to rectify the Article 8 breach that the ECtHR had identified in Goodwin and I. The suggestion that the UK Government intended to use the GRA as an opportunity to introduce a prison regime that was harsher on trans prisoners than the one it had just relied upon in Strasbourg is not historically plausible. And if Parliament did not intend to exempt the 1994 Prison Rules from the rule in section 9(1), there is no obvious sign that a different approach was intended when the 1994 Rules were repealed and replaced (first by the 2006 Rules, and those in turn in 2011 by the current rules). Accordingly, contrary to the Outer House’s conclusion, there are strong reasons to think that references to female and male prisoners in rule 126 respectively were intended to include trans women and men who have GRCs.

Interpreting rule 126(2)

Such an interpretation would plainly permit the Prison Service to include trans women with a GRC in the women’s estate: but what about those without GRCs? If Rule 126 were to be interpreted in accordance with section 9(1) of the GRA 2004, this would not necessarily mean that (a) trans women without GRCs or (b) trans men with GRCs would have to be placed in the male estate. They may not be able to share the same cells as prisoners who were legally female because of the strict terms of rule 126(1), but rule 126(2) provides a flexibility that would allow such prisoners to be accommodated in rooms which are part of the women’s estate (but separate from women’s actual living and sleeping accommodation) if placing those prisoners elsewhere would not be reasonably practicable.

There are many reasons why it would not be reasonably practicable to place those prisoners elsewhere. In the men’s prison they may face abuse, harassment and violence because of their identity, and violations of their privacy and dignity. Protecting them from such abuses might require them to be isolated from other prisoners, depriving them of ordinary social contact and opportunities. Where the prison has assessed that those prisoners can safely be housed in the female estate, and doing this would avoid the problems inherent in housing them elsewhere, there would be a strong argument for identifying these as the kind of circumstances that rule 126(2) was devised to accommodate.

The Outer House dismissed this argument. At §155, it held that:

The problem with that argument, though, is that the words in rule 126 carry a clear and obvious meaning. The sharing of accommodation by female prisoners and male prisoners is expressly prohibited. The “reasonably practicable” qualification to the requirement that respective accommodation for male and female prisoners be in separate parts of the prison connotes actual, practical considerations. It does not suggest that the requirement may be waived for some individual prisoners or for a particular category of prisoners. To take an unrelated and hypothetical example, if it were necessary to have contingency arrangements to accommodate prisoners in an emergency such as a fire or a flood, “practicability” might allow the accommodation of male prisoners in the same part of the prison as female prisoners, on a temporary basis and subject to arrangements being in place to protect safety and dignity. What is practicable is determined by reference to the accommodation itself, not to the identity of those who occupy it.

It is not clear why the kinds of concerns outlined above could not be “actual, practical considerations”. The fact that there might be other situations (such as a flood) that would make it reasonably practicable to relax rule 126(2) does not detract from the fact that particular and exceptional circumstances of trans prisoners may pose practical problems which also require a more flexible approach. The Court’s conclusion in the final sentence of that paragraph finds no obvious support from the wording of rule 126 itself. The equivalent provision in England and Wales states that “Women prisoners shall normally be kept separate from male prisoners” (Rule 12(1) of the Prison Rules 1999). There, the word “normally” makes it clear that the rule is not absolute. The Outer House did observe that the wording of the England and Wales provision was different (see §130), but regrettably, did not see the parallels with Rule 126(2) which also affords a degree of latitude as far as the placement of male and female prisoners is concerned.

Trans inclusion as discrimination against women

The Court further appeared to consider at §§92-93 that the admission of trans women to the female estate would amount to direct sex discrimination against women. The Court’s reasoning is difficult to follow. Its conclusion appears to be based on the premise that the policy had a greater effect on women than on men as there are more men than women in custody: this would appear to be the basis of an indirect, rather than a direct sex discrimination claim, which of course would be capable of justification. That was the approach taken by the Divisional Court in R (FDJ) v Secretary of State for Justice [2021] EWHC 1746 (Admin), a similar policy challenge to the inclusion of trans women in the female estate, which was dismissed. In that case, the Divisional Court held that, because the admission of trans women into the female estate was not “unconditional” but based on a case-by-case risk assessment meaning that non-trans prisoners only had contact with trans prisoners where it was safe, the Court was not persuaded that there was any discriminatory effect on women (FDJ at §87). The Court also held that in any event, any difference in treatment could be justified (FDJ at §§88, 91). It is also therefore surprising that the Outer House was prepared to conclude that the Scottish policy placed women at any sort of disadvantage without reference to the specific steps the policy required to assess risk and avoid placements which would pose a risk of harm to others.

Article 8

The Outer House rejected the argument that the exclusion of all trans women from women’s prisons and trans men from men’s prisons may breach individual prisoners’ Article 8 rights at paras 135-137. It held that any interference would be justifiable by reference to the “bright line rule” of sex segregation, citing Animal Defenders International v UK (2013) 57 EHRR 21, which was held to be well within the margin of appreciation.

However, there are good reasons to question this approach.

First, when assessing the proportionality of a general measure (or a “bright line rule”), Strasbourg has emphasised the “quality of the parliamentary and judicial review of the necessity of the measure is of particular importance” (Animal Defenders at §107). By contrast, the margin of appreciation is narrowed where legislation is introduced with no consideration of the relevant issues (see JR 123 [2025] UKSC 8, §58). In this case, there was no policy consideration of the pros and cons of the approach of housing all trans prisoners in prisons of their sex assigned at birth, compared with a more flexible approach which may mitigate the hardship on trans people created by a strict policy. This was not discussed because such an outcome was not foreseen to be a consequence of the Gender Recognition Act, the Equality Act or the Prison Rules at the time of their enactment. That ought to have narrowed the margin of appreciation.

Secondly, the above consideration highlights another unusual feature of the case. Bright line challenges typically arise when an individual claimant argues that the state is acting disproportionately by failing to adopt a more individualised approach. By contrast, in this case, the state had adopted an individualised approach, which the claimants sought to end, to be replaced with a bright line policy: the inverse of the typical case. Bright line approaches may be defended on the basis that the general measure is more feasible than an individualised approach, or avoids uncertainty, arbitrariness, expense or delay. But such arguments are out of place when the state itself seeks to defend a more individualised approach which it considers to be workable, practical, and to strike a fair balance between different policy considerations.

Third, the Court’s discussion of the margin of appreciation is at times unclear. At §136, it held that “being trans may be an important facet of an individual’s existence or identity, but it does not follow that that must have the consequence of restricting the margin allowed to the state”, despite the opposite having been held by Strasbourg (as noted by Lord Reed in the passage from R (Elan-Cane) [2021] UKSC 56which the Outer House went on to cite). Recently, in TH v Czech Republic App no 33037/22(12 June 2025), the ECtHR held at para 53:

Nevertheless, where there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, or where the States are required to strike a balance between competing private and public interests or Convention rights, the margin of appreciation afforded to them in implementing their positive obligations under Article 8 will usually be wide. However, where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will be restricted (see, in particular, Hämäläinen v. Finland [GC], no. 37359/09, § 67, ECHR 2014, and A.P., Garçon and Nicot, cited above, § 121). The Court has also considered that since the notion of personal autonomy is an important principle underlying the interpretation of the guarantees of Article 8 and the right to gender identity and personal development is a fundamental aspect of the right to respect for private life, the States have only a narrow margin of appreciation in that area (ibid., § 123).

Finally and most fundamentally, treating a “bright line rule” as a shortcut which obviates or reduces the need for the Court to engage in detail with the difficulties faced by trans people under an exclusionary policy does not align with the Court’s case law on gender recognition. Since B v France was decided in 1992, the Court has held that Member States have in various ways breached trans people’s Article 8 rights by failing to recognise their gender: e.g. by preventing people from updating ID documents which causes them to be outed (B v France), by failing to provide any form of legal recognition and exposing them to humiliating and stressful situations over the course of their day-to-day life (Goodwin; I v UK) or by making legal recognition conditional on undergoing an operation with a high probability of sterility (AP, Garçon and Nicot v France). Each of those cases could have been dismissed as hard cases falling the wrong side of a “bright line rule” based on biological sexual difference. Instead, the Court has consistently required States to provide effective gender recognition schemes and to protect the right of trans people to personal development and physical and moral security, the very essence of the Convention being respect for human dignity and human freedom (Van Kück v Germany(2003) 37 EHRR 51, §69).

Article 8 rights of course may be restricted, including when this is necessary for the protection of the rights of others. Yet the Outer House’s approach in FWS 3 precluded any detailed consideration of the actual, practical impact the different policies would have, both on trans prisoners and female prisoners generally, to evaluate whether a fair balance had been struck. This is regrettable, particularly as the Scottish policy appears to have been drafted intentionally to minimise any negative impacts on female prisoners, through the use of risk assessment, and the decision to exclude from consideration those convicted of offences of violence against women and those who posed an unacceptable risk of harm.

Conclusion

In 2023, the Council of Europe’s European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment considered the treatment of transgender prisoners in view of its mandate to prevent ill-treatment. The report concluded:

In line with the above precepts and international norms, the CPT considers that, as a matter of principle, transgender persons should be accommodated in the prison section corresponding to the gender with which they identify. If, after an individualised risk assessment, there are exceptional security or other reasons to accommodate them elsewhere, those reasons should be clearly documented, and subject to regular review.

In relation to the segregation of trans women prisoners, discussed by the Outer House as a possible solution to the problems facing trans women in the male estate (§110), the Report warns:

As mentioned above, transgender persons might be placed in a situation where they are separated from the mainstream prison population for protection purposes; this might be with certain other categories of vulnerable persons or it may be alone. Given that it is widely recognised that isolation or segregation can have long-term negative consequences on an individual, especially if it is prolonged or indefinite, such placement can only be justified in exceptional circumstances, in the short-term, and with the proper safeguards in place.

If the decision in FWS 3 is correct, trans people in prison had greater protections in 2002 (i.e. prior to the passage of the GRA and the prohibition of gender reassignment discrimination in public functions) than they do in 2026. The ECtHR was prepared to find in 2002 that the UK’s regime breached trans people’s human rights. Unless the current situation is corrected by further litigation or legislation, new findings of breach would appear to be inevitable.

Crash Krylova is a barrister at Landmark Chambers. She is instructed by the Claimants in the case of R (Good Law Project and others) v Equality and Human Rights Commission.