Another victory! For Women Scotland v Scottish Ministers in prisons case

[TheNoWord]

It’s just been on the news in Scotland. More to follow….

This extract is from a learned expert on Reddit. Note particularly his glumness about the "suicide option" at the end. Link to complete post at the end.

....Leaving aside the procedural matters, the key questions were:
Does the EA apply to prisons?
If so, how is the right of trans people not to be discriminated against due to having a PC of Gender Reassignment to be accommodated?
Does the interpretation give rise to an article 8 ECHR breach?
Does the interpretation give rise to arts 2&3 breaches relating to suicide?
On these points the court found:

Does the EA apply to prisons?
The court ruled the EA does apply. This is not surprising.
There is a lot of discussion about whether this counts as a public function for the purpose of the EA or supply of services.
The court finds it could count as either.
I am not going to dwell on this because there isn't much new here. FWS II applies- we know from the GLP case what that means.
And again, much the same reasoning is applied to determine that the SPS rules definition of male and female should match that of the EA as was used in GLP re the work regs. Again, not going to dwell on that.

This leads naturally on to:
If so, how is the right of trans people not to be discriminated against due to having a PC of Gender Reassignment to be accommodated?
The court found essentially that this is done by allowing continued access to medication and private ablutions within our ASAB facilities.
Hugely unsatisfactory imo.
The questions then turn to the human rights arguments:

Article 8
Goodwin was brought up, and dismissed as a narrow case:
In Goodwin and R (C) the issues with which the courts were concerned were the maintenance of government records and the retention of official data. The implementation of policies relating to such matters may well engage Article 8 rights, but there will be no direct impact on other individuals in respect of whom official records are maintained.

The remainder of the article 8 argument was also dismissed:
None of these cases establishes that trans women have a Convention right to accommodation in the women’s estate, or a right to be considered for accommodation in the women’s estate. Trans women have Article 8 rights, but respect for those rights does 61 not extend to an obligation to provide accommodation with women.

Such respect may well necessitate measures which can be, and are, taken within the men’s estate, including ensuring access to hormone treatment and maintaining privacy and dignity in showering arrangements. These provisions are set out in the Prisons Guidance.

Such measures do not involve any conflict with the protection of separate spaces. So far as accommodation is concerned, though, the relevance of the qualifications in Article 8(2) is immediately apparent.

Sex segregation in prisons is in accordance with law and is necessary, at least, for the protection of health and morals, and to protect the rights and freedoms of others, specifically women prisoners.

These are essentially reasons which support the maintenance of separate spaces in the context of the EA 2010, and as discussed in FWS 2.

This foreshadows a point I have raised previously with regard to the GLP appeal.

Recent caselaw has established that UK courts should no longer anticipate ECtHR rulings and so should be cautious when issuing declarations of incomparability where there is no direct precedence from Europe.

She goes on to cite this explicitly when referring to the art 2 and 3 arguments that holding trans people in ASAB prisons increases the risk of suicide and so breaches the convention:

Articles 2&3
In submitting that I should conclude that a Convention compliant reading of rule 126 requires construing its terms as permitting the accommodation of trans women in female prisons, the respondents are inviting the court to develop the law in relation to Convention rights beyond the limits of the Strasbourg case law. However, the domestic courts should not go further than they can be confident that the European court would go: Elan-Cane, paragraph 63. I cannot be confident that the European court would go so far as to recognise a Convention right for a trans prisoner to be accommodated in a prison for the opposite biological sex; no authority has been cited that would allow me to reach that conclusion.

However she does awkowledge ls that in extreme cases where there is a direct threat to life the SPS will need to consider exceptional measures:

Ultimately, the argument concerns the question of whether there can be any flexibility to allow for the truly exceptional case where, if accommodated in a prison in accordance with the trans prisoner’s biological sex, there is a threat to life or of harm that is so severe that it meets the Article 3 threshold. The first point is that it would be necessary to consider all possible means of addressing that threat, including means for which no provision is currently made.

That said, other dicta makes it clear that this should almost never include transfer to the female estate:
The existence of risk, though, does not necessitate an option, as a matter of policy, to accommodate trans women prisoners within the women’s estate. The women’s estate is not a neutral space; those accommodated within it are women who, as was submitted for the petitioner, have their own vulnerabilities in terms of poor mental health and risk of suicide.

So in practice, she is referencing third spaces.

TLDR- it's pretty bad. It addresses the core arguments the GLP are hoping to advance in their appeal and confirms that we are highly unlikely to get a remedy to FWSII from the domestic courts.

It is either going to have to come from parliament or Strasbourg.

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full post https://www.reddit.com/r/transgenderUK/comments/1u9z4j6/comment/oskm8eh/

I think this is Protect the Dollz after a nc, I could be wrong but v similar

Yes, I imagine if that was how the old proscription thing worked we could put together quite a convincing case for a few TRA orgs. But I don’t think it is, boys.

It’s definitely his writing style and it’s halfway sensible.

Less sensible is the poster suggesting we’re all “pro rape”…because TIMs being locked up with non-TIMs is our problem how?

The way "case-by-case" was explained to me (several times, if I recall correctly, because I Just Wasn't Getting It) is that the "case" is the situation, not the individual. If a situation (e.g. changing roons) is considered lawfully only suitable for Group A, then everyone in Group A is legally allowed. This does not include someone from Group B who looks like/thinks like/wants to be like people in Group A. And there has to be a justifiable reason for the situation to include only people from Group A.

So case-by-case determines what type of situation it should be, and whether it's justified. Then you look at the groups of people.

I hope that's right!

Amazed that this guy can write this:

"The women’s estate is not a neutral space; those accommodated within it are women who, as was submitted for the petitioner, have their own vulnerabilities in terms of poor mental health and risk of suicide."

And still have the chutzpah to conclude that the ruling is "pretty bad", and go on to discuss ways of overturning it

I mean - he actually said clearly and succinctly what feminists have been saying for years - that we don't hate trans people, but the overreach from TRAs is affecting the rights of another group of people (women). Why have so few mainstream politicians and journalists and public thinkers said this over the last decade? Were they caught napping? Have they not been listening to anyone outside of their own small circle? Do they not see women, or do they just not care?

But yes, fantastic news! 🥳

According to the Times article posted upthread, it's only a minority of TiM that are put in women's prison anyway. If the majority are already safely accommodated with the other men I'm sure the rest will be fine. They'll even have like minded blokes to mix with so no need to be fearful of solitary confinement.

It is glorious. And it is unsurprising to the many of us that have been saying this and pointing out the clauses which contradict the claims of protection.

Each of these cases seems to come back with a similar outcome.

First that yes it's likely the needs and wishes of this particular group do justify additional and different provisions, sensitivity and accommodation.

Second, that this cannot involve taking over women's resources, because those women have rights too.

Third spaces being the obvious solution.

Or place them with the other TW prisoners on a dedicated wing within the male estate, there seem to be quite enough TW to facilitate this and after all if they believe TWAW they've got their wish to be placed with 'women' and 'women' just like themselves therefore nothing to complain about.

There are some interesting comments from a man who says he is a prison officer on the r/politics thread. He says he works with 8 TIM prisoners, all there for sex offences. They seem to get a lot of privileges. Apparently they had a beautician in for Trans Day of Visibility. He said that if staff or other prisoners don’t affirm their identities they get disciplined.

And haven't we been saying just this very same thing for years and years and years? And, unbelievably, because a judge has said it, it's suddenly possible! Who knew that saying "Um, no" could have such an instantaneous, reality-based effect?

Sacred caste, indeed.

There pretty much is one at HMP Edinburgh.

This is great. What on earth are the SNP thinking that men need to be with women.

JFC.

Seriously?

You just know that the SNP are going to try and utilise the suicide “loophole”.

Do you have a link?

Also not a lawyer, but I think it's even more tightly drawn than that, from what I remember of some answers Karon Monaghan gave to a Commons Select Committee a while ago. You're right that "case by case" doesn't refer to the individual but rather the setting, but it's specific to the individual setting, not all settings of that type. So if we were talking changing rooms, a "case by case" reading might say that a specific changing room with cubicles that have lockable doors and an attendant would be considered differently to ones with flimsy curtains or just a communal space. Or in the case of prisons, having a dedicated unit for transwomen in the female estate (like Downview) being considered differently to putting transwomen in a different prison.

(For the avoidance of doubt, I'm in favour of specialist provision outside the female estate, but think this is how case by case might be argued)

Sorry only had time to read the first page, so this link may have been added.

But here is FWS press release on their web site for all those not on twitter (did you know twitter has fewer users than reddit!)

https://forwomen.scot/19/06/2026/fws-v-scottish-ministers-iii-the-judgment/

[178] Sex segregation in prisons in Scotland is lawful. The statutory scheme, based on the EA 2010 and the 2011 Rules, requires separate prison accommodation for men and women. Following FWS 2, this means sex segregation in prisons according to biological sex.

[179] Insofar as the Prisons Guidance allows SPS to accommodate trans prisoners in prisons for the opposite biological sex, it is in conflict with the requirement that prison accommodation be provided separately for men and women. That constitutes a mis-statement of the law.

[181] All prisoners have rights under the European Convention on Human Rights. Trans prisoners have rights under Article 8, but this does not extend to a right to be accommodated in a prison for the opposite biological sex. Article 8 rights are qualified and there is a justification for maintaining sex segregation in prisons. The statutory scheme imposes a bright line rule and sex segregation in prisons does not admit of exceptions on the basis of Article 8 rights.

[184] In all the circumstances, the Prisons Guidance is unlawful and the petitioner is entitled to orders for declarator and reduction.

(Extract only)

Not directly responding to your post, but along the same lines -

I was interested to read in the ruling that 'hard cases make bad laws'/it can be permissible for a law to have negative consequences for individuals.
Like New York New York, it's so good she named it twice, at 114 and 135😄

135 ..The imposition of a bright line rule may have adverse consequences for individuals but there is a strong line of authority which makes clear that, as explained by the European Court of Human Rights in Animal Defenders at paragraph 106: “a state can, consistently with the Convention, adopt general measures which apply to pre-defined situations regardless of the individual facts of each case even if this might result in individual hard cases”.

114... Relying on Animal Defenders International v United Kingdom (2013) 57 EHRR 21 at [106], the petitioner maintained that a general measure can be adopted which applies to pre-defined situations regardless of the individual facts of each case even if this might result in individual hard cases.

The 'pre-defined situation' in this case is that it is long-established practice that prisons are segregated by sex, and that fact that a few trans-IDing men don't like it does not mean it breaches their human rights.

and
82... For separate spaces to be maintained in a way that is foreseeable and consistent, there require to be rules, whether statutory, as in this case, or otherwise, which are capable of general application.

The judgment is well worth a read, Lady Ross is very clear and concise eg
92.. There are disadvantages associated with the sharing of accommodation by female and male prisoners; were it otherwise, there would be no need for sex segregation. [mic drop😁but not really because she goes on to say:]
At a minimum, those disadvantages are a risk to physical safety and violation of dignity.

108.... However, the respondents seek to apply an over-expansive construction of “equal opportunity requirements”. Promulgating and applying a policy which is inconsistent with the “equal opportunity requirements”, as defined in section L2 of Schedule 5, and by reference to the EA 2010, read, in this case, with the 2011 Rules, would result not in the observance of those requirements but in a breach.

And I noticed a reference to segregated swimming areas - any one in particular I wonder?🤔

75 The examples listed in paragraph [211] - changing rooms, homeless hostels, segregated swimming area - are all within the services category. These are all services provided to both men and women, but separately, and for reasons including the protection of women’s safety and the autonomy or privacy and dignity of the two sexes

And finally -how's this for a put-down?
[107] The difficulty with the respondents’ argument becomes clearer when its logical consequence is considered.
ouch!😁

[all bold/underlining mine]

adopt general measures which apply to pre-defined situations regardless of the individual facts of each case even if this might result in individual hard cases

Also referenced by the SCJ in FWS in the context of the measures needed to provide equality and facilities for a group (women) - the individual hard cases were not a reason to remove needed and wanted facilities from everyone else.

Judge rules Scottish guidance for housing trans prisoners is unlawful - BBC News

I'm not sure activists would agree it was possible, but yes, interesting that the law interpreted by multiple judges (and NOT just the EA but everything, the Convention too, so getting some twit politicians to try and change the EA won't change much) come to the same answer we did a decade ago.

It's the only fair and reasonable answer.

.