Scotland’s treatment of trans female prisoners will result in tortuous conditions

Lady Ross’s 19th June 2026 opinion in the For Women Scotland Judicial Review[1] caused the Scottish government to remove trans female prisoners from the Scottish prison estate[2] by the 23rd June 2026. A central point raised by Lady Ross (at 182) is that trans female prisoners have no positive protection under Article 3 of the European Court of Human rights which is UK law under the Human Acts 1998. This means they should be housed in the female prison estate, yet she recognises that trans female prisoners have a right to be protected from torture in the abstract. She makes it clear at 183:

It is possible that, in an exceptional individual case, in a situation where there is a threat to life through suicide, it may be necessary to consider an argument that accommodation in a prison for the opposite biological sex is necessary and that rule 126 should be disapplied. Whether that could be achieved compatibly with the requirements of the EA 2010 cannot be determined in the abstract. In any event, disapplication or disregard of subordinate legislation cannot form part of a general policy.

‍ Based on the UK Supreme Court’s For Women Scotland April 2025 ruling Lady Ross deemed that trans female prisoners ought to be considered “biologically male” for all purposes under the Equality Act 2010 (EA2010). This means that outside of a very small scope trans women now must be housed in the male estate will all attendant risks associated with that.

‍ There are plenty of people who believe this is acceptable, indeed ought to have been the Scottish government’s policy in the first place, yet as with the UKSC’s FWS ruling it strips out all context and nuance to set in place a blunt edged policy which will systematically strip all trans female prisoners of their right to exist as themselves without fear of torture and abuse.

‍ In 2001 the European Court of Human Rights (ECtHR) laid out in Peers v. Greece[3] that:

‍ Although the Court considered that there was no evidence of a positive intention of humiliating or debasing the applicant, the absence of any such purpose could not conclusively rule out a finding of a violation of Article 3.  The fact that the competent authorities had taken no steps to improve the objectively unacceptable conditions of the applicant’s detention denoted lack of respect for the applicant.

This means that even if there is no positive intent to humiliate or debase a trans female prisoner if trans women are placed in unacceptable conditions this will be a breach of their Article 3 rights. Given that often the only way to protect trans women in the male estate is to place them on protection wings, segregation units, or other forms of restricted movement Peers v. Greece held that segregation units de jure can amount to degrading treatment under Article 3.‍ ‍

ECtHR Bastovoi v. Republic of Moldova[4] held that those subject to conditions of detention entailing hardship that go beyond the unavoidable level of suffering inherent in detention are a violation of Article 3 of the Convention. This means that any trans woman held in the male estate where she suffers from hardships beyond the usual deprivation of liberty in prison potentially has an Article 3 claim.‍ ‍

Gjini v. Serbia (2019)[5] lays out that rape and sexual abuse by cellmates and other prisoners is a violation of Article 3 and tantamount to torture. Lady Ross’s opinion opens up the likelihood that trans female prisoners in Scotland are going to be victims of V-coding. This practice of subjecting trans women to sexual assault by placing the woman in the same prison cell to placate the male inmate[6], and more broadly means that when trans women are placed in cisgender male spaces there is significant risk that they make be forced to commit sexual acts without consent or be subject to sexual violence. Gjini makes it clear that prison services have an Article 3 obligation to prevent sexual violence against prisoners, especially vulnerable prisoners who are open to exploitation and abuse.‍ ‍

T.H. v Czech Republic applies Article 3 to the repeated and involuntary disclosure of a person’s gender identity. This means that a trans female prisoner who is moved into the male estate de jure has her gender repeatedly and involuntary disclosed at every touch point during her time in prison. T.H. was forced to disclose his identity everything he produced official documentation and his claim was held to be manifestly reasonable, so there is no reasonable grounds through which the Scottish Prison Service can hold a trans woman in the male estate without this being a perpetual part of her life.‍ ‍

W.W. v. Poland[7] made no reference to the transgender claimant’s incarceration in a Polish women’s prison, simply stating that it would be an Article 8 violation to deny a trans woman hormone replacement therapy. This case held that the applicant’s particular vulnerability as an imprisoned transgender person undergoing a gender reassignment procedure required enhanced protection from the authorities. W.W makes it clear that trans prisoners are considered a vulnerable group who cannot simply be treated by a sweeping policy. Combined with T.H. and Gjini this demonstrates that Lady Ross’s opinion fails this test by refusing to acknowledge those vulnerabilities.‍ ‍

Indeed, all three cases make clear that the Scottish government does owe transgender women a positive obligation under Article 3 because there are serious risks associated with housing transgender women in the male estate. It is not reasonable to expect trans women to be housed in segregation units and protection wings alongside sex offenders and other vulnerable male prisoners who are segregated for their own protection simply because a trans woman is trans. Bastovoi holds that this will place hardship beyond the levels of suffering inherent with standard detention.

‍ The principle Lady Ross draws from the UKSC FWS is that de jure irrespective of a trans’s woman’s crimes or surgical history she will always be treated as a male bodied person. This ignores W.W., Goodwin, T.H. and the basic principle that the philosophical beliefs of others cannot de jure be used to deny trans women’s identities and freedom from torture. There is no ECtHR precedent which denies trans women de jure housing in the female estate, and as W.W. demonstrates the court is happy to uphold trans women’s detention in the female estate without questioning it on the grounds of “biological sex” (which has no standing at the European level).

‍ Case study:

‍ There is on recent tragic example of how housing transgender women in the male estate creates a chilling effect on the trans women involved.  Trans female prison Sarah Jane Riley’s suicide on 12th January 2019 while on a Scottish Separation and Reintegration Unit[8] highlights the risks posed to placing trans women in the male estate, especially when they are placed in segregation for their own protection. The Sherrif’s report found at [183]:

‍The result was that the decision to accept the recall of Sarah to a local male prison could only be changed with difficulty even though it was viewed as problematic and inappropriate by many of those working with her.

This report was written after the UKSC decision in FWS, meaning that the Sheriff has created a set of recommendations and opinions which are at odds with the opinion made by Lady Ross. If it was unacceptable in 2019 to recall a vulnerable trans woman to a Scottish male prison the only reason why it is viewed as acceptable now are the gender critical philosophical beliefs of the Petitioners in the 2026 judicial review.

Conclusion

‍ Trans women are therefore faced with a carceral system in Scotland which puts them at risk of systemic physical and/or psychological torture due to the philosophical beliefs of a small group of petitioners. The concept of “biological sex” has no grounding in ECtHR decisions, and is at odds with the precedents set by the could as recently T.H. and W.W. Therefore, it is highly likely that if a trans female prisoner housed in the male estate in Scotland were to bring a claim for relief from Article 3 torture she is likely to succeed based on current caselaw.

R‍eferences ‍

[1] Opinion Of Lady Ross in Petition Of For Women Scotland for Judicial Review [2026] CSOH 59. Available at: https://www.scotcourts.gov.uk/media/pnbpzgex/2026csoh59-petition-of-for-women-scotland-for-judicial-review.pdf

[2] BBC. (2026). Trans inmates leaving women's prisons following court ruling. Available at: https://www.bbc.co.uk/news/articles/cx2jndnjwexo

[3] Chamber judgment Peers v. Greece 19.04.01 Available at: https://hudoc.echr.coe.int/eng-press?i=003-68398-68866

[4] Judgment Valentin Bastovoi v. Republic of Moldova - Inhuman and degrading conditions of detention. Available at: https://hudoc.echr.coe.int/eng-press?i=003-5927705-7571264

[5] Judgment Gjini v. Serbia. Available at: https://hudoc.echr.coe.int/eng-press?i=003-6298785-8219959

[6] Nemec, B. (2011, p 228-9). No-one enters like the in: Captive Genders. Available at: https://transreads.org/wp-content/uploads/2019/03/2019-03-17_5c8e1109138da_eric-a-stanley-captive-genders-trans-embodiment-and-the-prison-industrial-complex-expanded-second-edition.pdf

[7] (1 DE 1) W.W. v. Poland. Available at: https://hudoc.echr.coe.int/fre?i=002-14358

[8]Determination By Sheriff Pino Di Emidio Under the Inquiries Into Fatal Accidents And Sudden Deaths Etc (Scotland) Act 2016 Into The Death Of Sarah Jane Riley. Available at: https://www.scotcourts.gov.uk/media/fn2b4bn1/2025fai42-fai-sarah-jane-riley.pdf

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