Judge Rules Scottish Prison Guidance on Transgender Housing Unlawful

Judge Lady Ross ruled on 19 June 2026 that Scottish Prison Service guidance permitting some transgender prisoners to be housed according to gender identity is unlawful. The judge stated that sex segregation in prisons must be based on biological sex, citing the Supreme Court ruling on the definition of a woman in equality law from April 2025.

" "In all the circumstances, the prisons guidance is unlawful," Lady Ross said.

The Supreme Court ruling from April 2025 stated that all prisoners retain rights under the European Convention on Human Rights, including transgender prisoners, and that Article 8 is engaged in prison accommodation decisions. However, the court also stated that Article 8 does not automatically grant a transgender prisoner the right to be housed in a prison designated for the opposite biological sex.

Lady Ross said the Article 8 right may be restricted where there is a legitimate justification, including maintaining sex-based segregation within the prison estate.

She added that in exceptional circumstances involving a serious threat to life such as suicide risk, Article 2 of the ECHR might require consideration of housing a prisoner in a facility for the opposite biological sex. The Scottish Prison Service currently uses individual risk assessments that allow trans women born biologically male to be housed in the women's estate if deemed not to pose an unacceptable risk.

For Women Scotland brought the judicial review challenging the guidance, arguing only those born biologically female should be held in the women's estate.

Lawyers for the government had argued this would breach transgender prisoners' human rights. " "We should never have needed to take this case and we hope this will be the last time that we are forced to go to law to defend the rights of women," Smith said.