For Women Scotland v Scottish Ministers [2026] CSOH 59

In brief

The Outer House of the Court of Session (Lady Ross) upheld For Women Scotland's judicial review of the Scottish Prison Service's 2024 operational guidance on the management of transgender people in custody: "In all the circumstances, the Prisons Guidance is unlawful and the petitioner is entitled to orders for declarator and reduction" [184]. The court held that the statutory scheme, based on the Equality Act 2010 and rule 126 of the Prisons and Young Offenders Institutions (Scotland) Rules 2011, requires separate prison accommodation for men and women, which following the Supreme Court's 2025 decision means separation according to biological sex [178]. So far as the guidance allowed trans prisoners to be accommodated in prisons for the opposite biological sex, it mis-stated the law [179] and applying it would be outside the Scottish Ministers' powers under section 54(3) of the Scotland Act 1998, because it conflicts with the law on equal opportunities, a reserved matter under section L2 of Schedule 5 [180]. Deciding which prison a prisoner is sent to is the exercise of a public function under section 29(6) of the 2010 Act, not the provision of a service, so the statutory authority exception in paragraph 1 of Schedule 22 applies because rule 126 is a requirement of an enactment [71], [73], [77]. Trans prisoners have Article 8 rights, but they do not extend to accommodation in a prison for the opposite biological sex, and the scheme is a bright line rule that admits no Article 8 exceptions [181]. There is no general positive obligation under Article 2 or 3 to accommodate a trans prisoner in such a prison, although disapplying rule 126 may need to be considered in an exceptional individual case such as a threat to life through suicide; that cannot form part of a general policy [182]-[183]. The respondents did not argue that rule 126 should be read other than by reference to biological sex [78]. The court also said that the 2010 Act protects trans prisoners held in the estate of their biological sex from discrimination and harassment, that a third space separate from both estates is an option in principle, and that the Prison Service must put measures in place so that trans prisoners are not treated less favourably or put at a particular disadvantage [110]-[111], [124].

Key provisions

• para-71 — Prison allocation is a public function, not a service : Per [71], in deciding to which prison a prisoner is committed, the Scottish Ministers exercise a power under section 10(2) of the Prisons (Scotland) Act 1989: "That is a governmental function, which can be discharged only by the first respondents, and in doing that they are exercising the coercive powers of the state". They are not simply providing an accommodation service; once a prisoner is admitted, services are provided, but the critical act is the allocation decision, which is the exercise of a public function subject to section 29(6) of and Schedule 22 to the Equality Act 2010 [71]. Per [69], a single act cannot be both the provision of a service and the exercise of a public function.
• para-77 — Schedule 22: sex segregation required by an enactment needs no case-by-case justification : Per [73], there is no contravention of section 29(6) if allocating prisoners according to sex is done pursuant to a requirement of an enactment; the 2011 Rules are an enactment, and rule 126 prohibits the sharing of the same accommodation by female and male prisoners. Per [77], the justification does not require a case-by-case analysis or evidence about an individual claim: "The only question that needs to be asked is whether sex segregation is done pursuant to an enactment, and the answer to that question is that it is".
• para-78 — Biological sex reading of rule 126 was not argued against : "The respondents did not argue that the reference to female prisoners and male prisoners in rule 126 should be understood in any way other than by reference to biological sex" [78]. The court added that this is an enactment read with section 29 of and Schedule 22 to the Equality Act 2010 and any alternative reading would be impossible following the Supreme Court's decision [78].
• para-82 — Alternative view: Schedule 3 paragraph 26 would also justify separate prisons : Per [79]-[80], if allocation were instead the provision of a service in the exercise of a public function, paragraph 26 of Schedule 3 (separate services for the sexes) would apply, and a women's prison is not a single-sex service within paragraph 27 because prison accommodation must be provided to both sexes [80]. Per [82], sex segregation in prisons is not mandated in terms by the Equality Act 2010 but is lawful, and the exceptions can only sensibly be operated on a group basis: "Following FWS 2, lawful sex segregation in prisons means that trans prisoners are excluded from prisons for the opposite biological sex" [82]. Per [84], excluding a trans woman from the female prison estate does not constitute gender reassignment discrimination.
• para-92 — Effect on female prisoners as a group : Per [92], there is a basis to conclude that accommodating male prisoners in the female estate would result in female prisoners receiving less favourable treatment because of their sex; at a minimum the disadvantages are a risk to physical safety and violation of dignity. Per [93], it is not necessary to establish a breach of obligations towards any individual female prisoner. Per [90], on harassment, evidence would be needed, and admitting an individual trans woman prisoner would not necessarily create a harassing environment.
• para-95 — Trans men are accommodated in the female estate; no contradiction : Per [95], excluding a trans man from a female facility may in general be proportionate, but in a prison, where there is both compulsion and no alternative, it would not be an option. An individual trans man prisoner may or may not need special arrangements within the women's estate, and accommodation there may engage his Article 8 rights, but sex segregation is justified as a bright line rule. Provision for trans men away from the women's estate, or for trans women away from the men's estate, could lawfully be made under paragraph 28 of Schedule 3. "The inclusion of trans men prisoners in the female estate is lawful and does not, as the respondents suggest, expose a contradiction" [95].
• para-110 — Protections for trans prisoners within the estate of their biological sex : Per [109]-[110], the Equality Act 2010 gives trans prisoners important protections through the protected characteristic of gender reassignment, and it would be unlawful to discriminate against or harass a trans woman prisoner held in the male estate; there may be indirect discrimination under section 19 if a trans prisoner is placed at an unjustified disadvantage when held in a prison corresponding to biological sex [110]. A trans woman prisoner cannot insist on accommodation in the women's estate, but depending on individual circumstances may have a basis to argue for accommodation in a third space, and within the men's estate different provision is likely to be required [110]. Per [111], even without a third space, the Prison Service must put in place measures so that trans prisoners are not treated less favourably because of gender reassignment "and are not put at a particular disadvantage when compared with persons who do not share that protected characteristic". Per [112], the guidance's provisions on matters other than location (accurate data recording, preferred names and pronouns, searching, testing, privacy when showering and changing, and access to additional property) are important provisions to protect trans prisoners.
• para-124 — A third space is an option in principle : Per [124], there are means of protecting trans prisoners' rights that do not involve accommodation in a prison for the opposite biological sex; it was beyond the scope of the judgment to canvass when a third space may be required for an individual, "but that is an option in principle", and its practical feasibility must be a matter for the Scottish Ministers. Per [153]-[154], a dedicated unit was addressed only to a limited extent, and the court said that on the face of it, it is a measure open to the Scottish Ministers if needed to protect a trans woman prisoner's Convention rights.
• para-136 — Bright line rule and a wide margin of appreciation : Per [135], applying Animal Defenders International v United Kingdom, a state can adopt general measures that apply regardless of individual facts even if this results in hard cases. Per [136], the margin of appreciation in regulating prisoner allocation will in general be wide: "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". Per [137], a clear justification exists for legislating by reference to pre-defined categories of sex, well within that margin.
• para-155 — Reasonably practicable in rule 126 does not allow exceptions for categories of prisoner : Per [155], the reasonably practicable qualification in rule 126(2) connotes actual, practical considerations and does not suggest that the requirement may be waived for some individual prisoners or a particular category of prisoners: "What is practicable is determined by reference to the accommodation itself, not to the identity of those who occupy it". Per [156]-[158], a Convention-compatible reading permitting trans women to be admitted to the female estate was refused. Per [157], rule 12(1) of the Prison Rules 1999 in England has no application in Scotland and cannot be used to construe rule 126.
• para-183 — Articles 2 and 3: no general obligation; exceptional individual cases left open : Per [182], there is no positive obligation, in general terms, under Article 2 or Article 3 to accommodate a trans prisoner in a prison for the opposite biological sex. Per [183], in an exceptional individual case, where there is a threat to life through suicide, it may be necessary to consider whether rule 126 should be disapplied; whether that could be achieved compatibly with the Equality Act 2010 cannot be determined in the abstract, and "disapplication or disregard of subordinate legislation cannot form part of a general policy" [183]. Per [149], the evidence on suicide risk before the court was general and not specific to trans prisoners.
• para-176 — Declaration of incompatibility would not have been made (obiter) : Per [175]-[176], had allocation been a service subject to Schedule 3, the court would not have made a declaration of incompatibility: it would have gone further than the Strasbourg case law justifies and the question would have arisen in the abstract, applying Attorney General of the Cayman Islands v Buray [2025] UKPC 22 and distinguishing In re JR 123 [2025] UKSC 8.
• para-5 — Terminology, and no distinction by gender recognition certificate : Per [5], following the Supreme Court's approach, the court used trans woman for a biological man with the protected characteristic of gender reassignment and trans man for a biological woman with that characteristic, and said that in the context of this case "it is unnecessary to draw any distinction between a trans prisoner who has a gender recognition certificate under the Gender Recognition Act 2004 and a trans prisoner who does not".
• para-185 — Procedural postscript : Per [185], raising an ordinary action for declarator in order to avoid the time limit in section 27A of the Court of Session Act 1988 is not a course which should be followed.

When relevant

When a question turns on how far the Supreme Court's biological-sex reading of the Equality Act 2010 reaches into other statutory schemes, and in particular on single-sex accommodation or allocation that a statute requires rather than permits [71], [77], [178]. It governs the allocation and accommodation of people in prison in Scotland, and shows public bodies, HR and senior leaders how a court separates a public function under section 29(6) from a service under section 29(1), and why that decides whether the Schedule 22 exception for requirements of an enactment is available [71], [73]. It is also relevant to bright line rules against individual assessment under Article 8 [135]-[137], and to devolved competence where equal opportunities are reserved [180]. Toolkit analysis: for organisations whose single-sex arrangements are not required by an enactment, it supports the general point that separate provision is operated on a group basis [82], but the Schedule 22 route will rarely be open to them. It also states duties owed to trans people within the estate or provision matching their biological sex, including measures against less favourable treatment and particular disadvantage, and the option of a third space [110]-[111], [124]. It is a first-instance Scottish decision, not binding in England and Wales, where the prison rule is worded differently [157]; the reading of rule 126 by reference to biological sex was not argued against [78]. Decision support, not legal advice.