is there a thread for FWS / Prisons?

I have drawn the unsurprising conclusion that the respondents arguments are legally very flimsy, and are very apparently emotive.

its perfectly possible that the judge will come up with some bizarre ruling as did Hadalane, re GR exceptions, but since that was quashed in the SC ruling, it is hard to see what wiggle room this judge could possibly have.

It's an interesting point. If the fact of being male doesn't disqualify a prisoner from being moved to a female prison because of a breach of their human rights ("I'll die by suicide if I don't") - there's nothing to say that any other human rights issue, like distance from home, might not also necessarily mean they could be moved to a female prison.

In theory then, any man (who by the SPS's criteria isn't a harm to women) could also demand to be in a women's prison.

There are two ways out of this for the SPS, neither of which is attractive.

Firstly they could say the human rights issue only for trans-identifying men is ameliorated by the presence of women. That would make explicit the women as support animals reasoning.

Secondly they could say that merely by virtue of being trans-identifying, a man is less of a danger to women. That would tie them up in knots having to define what precise element of a man being trans-identifying reduces the hazard to women compared to other men.

'Janys Scott KC, representing the EHRC, said that in light of the judgment, a service that admitted biological men who claim to identify as women, alongside those born female, could no longer be considered “single sex” and would therefore lose protection against discrimination claims.'

So, any women prisoners who have been in with a male since last April, could and can now make a claim.

Oh. Wait.

Any man who has been in prison since last April and asks to be transfers to a women's prison but is refused, could now make a claim?

Times article:
https://www.thetimes.com/article/8f5e88fa-394e-479c-8592-7df2aa6d86bb?shareToken=f368a65b247d44a678f52a52b552dc6b

Isnt it. Jaw dropping, really. They really are saying the quiet parts out loud.

I'm always amazed how often this needs to be said. Women are not -

Human shields
Emotional support humans
Resources to be utilised
Non player characters
Validation resources

Any issues for male prisoners (however they identify) is for male prisons to resolve. The Scottish Government are now openly saying that women's prisons (and the women inside them) are resources to be exploited for the benefit of men.

It's appalling.

My ears pricked up at that, too.

That’s certainly what the SG are attempting to argue. I don’t fancy their chances. The last time they tried to defend the indefensible they ended up with a Supreme Court ruling confirming that the meaning of woman in law was, well, woman/adult human female.

Even if this particular hearing doesn’t go that way, and the lower courts cant quite find it in themselves to face biological reality, then the Supreme Court eventually will do a repeat. If there’s a need snd legal reason for women’s prisons, then theres a need for single sex spaces, then men aren’t allowed (penis or no penis)

I really can’t tell 👀can you?

I’m glad someone said this, as it is the argument often used by TRAs when we say women should not be imprisoned with men; ‘don’t commit crime then’ they say.

Works both ways fellas, works both ways...

Exactly the same risk as any other man.
(although wouldn't be able to rape with a penis if that's been removed but would be able to penetrate with other objects in serious sexual assault)

A man (SC definition) is still a man even if he's chosen to have parts of himself amputated. His strength may be moderately reduced by cross sex hormones but not enough to undo the strength and power advantages of going through male puberty.

But it's not just a threat issue. It's also dignity, privacy, religious observance, past trauma and a myriad of other reasons woman might want to not have men in their spaces.

You only have to look at Laverne Cox and Ellen Paige to know which one is male and which one is female, despite the best efforts of their plastic surgeons.

He may have more than a hypothetical interest given his previous stated disregard for the law.

@ATranssexualWoman there is a really really really easy way for a TiM to keep themselves safe and out of the men's prisons. Its called obeying the law. Be a good law-abiding citizen and you'll never get locked up with the nasty men.

the current JR will determine if its lawful or not.

Ethical for who? Its certainly not ethical to imprison women with men.

I wonder if we will, given they seem to have overlooked women’s rights in general.

I guess we'll be told tomorrow.

How does making the women’s estate mixed sex fulfil that duty to women?

No, unfortunately. If you sue your local authority for violating your human rights they can say "we we did what we did because the law says we had to" and that's a defence. That defence isn't available to the Scottish Ministers.

Does that mean we could sue Scottish ministers as individuals for breaching the human rights of women?

Not quite; they're saying that the sections of the EA that apply only to public services may not apply. Other sections do apply.

You will also see that the Public Sector Equality Duty applies in the discharge of public functions; section 149 of the EA says

A public authority must, in the exercise of its functions, have due regard to the need to—
(a)eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b)advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

I think they want to say that managing prisons is a public function and so the law requires them to advance equality of opportunity etc etc.

They've set up their exposition of the structure of the law today; tomorrow they will apply the law (as they've explained it) to the facts. It should be interesting.

Yes. It's a very technical argument. It hinges on the interpretation of Section 57 of the Scotland Act and whether someone can sue the Scottish Ministers under the HRA if they do something wrong in ways that are connected with primary legislation. Other public authorities are protected by 6(2) HRA, but not the Scottish Ministers.

This quote from Somerville vs Scottish Ministers in the Supreme Court makes the point:

A further indication of what was intended by Parliament is to be found in section 57(3) SA. It extends to acts of the Lord Advocate in prosecuting any offence, and in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland, the protection that is afforded to a UK public authority which acts in ways that are inextricably connected to primary legislation that are described in section 6(2) HRA. But it does not extend this protection to any other member of the Scottish Executive.

Sometimes I almost feel sorry for the people whose job compels them to mouth absurdities.

Ah, this really was them arguing the EA didnt apply to prisons, wasnt it? Nutters.

'because of the unique position of the Scottish ministers, they do not have the easy get out of following laws set in Westminster but also have to refer to European law'

If that's true, why would that be, why isn't UK law the only one they have to follow?