Scottish government faces new legal challenge over gender policies in schools and prisons

Shiva K Dhakal
UKNepalPress.com | National Press Corporation (NPC)
United Kingdom

The Scottish government is facing fresh legal action after campaigners argued that its policies on transgender pupils and prisoners breach a recent Supreme Court ruling on the definition of sex.

For Women Scotland, which previously secured a landmark judgment clarifying that the terms “woman” and “sex” in the Equality Act 2010 refer to biological women and biological sex, has lodged proceedings at the Court of Session in Edinburgh.The campaign group claims that existing government guidance on the use of toilets in schools and the allocation of transgender prisoners in the female estate remains “inconsistent” with the court’s decision earlier this year.

Under the current rules, school pupils are advised that they should, “where possible,” be able to use facilities they feel most comfortable with. Prison guidance permits transgender women to be housed in the female estate unless they fall under violence against women and girls criteria or are deemed to pose an “unacceptable risk of harm.”For Women Scotland contends that both policies are unlawful, insisting they undermine sex-based protections and place vulnerable women and girls at risk. The group has asked judges to suspend the rules immediately and quash them in full.

“The school guidance and the prison guidance are unlawful and must be reduced in whole,” the organisation said in a statement. “These policies remain stubbornly in place, to the detriment of women and girls.”

The Scottish government has 21 days to respond. A spokesperson said: “It would be inappropriate to comment on live court proceedings.”

Supreme Court ruling

The Supreme Court in April unanimously upheld For Women Scotland’s challenge, ruling that “woman” in equalities law means a biological female, and that sex-based protections in the Equality Act must be interpreted accordingly.While the ruling reaffirmed protections specific to biological sex, it did not remove the existing protections for transgender people under the separate characteristic of gender reassignment.

The judgment forced public bodies to review gender policies across Scotland, from hospital wards to toilets and changing rooms. The Scottish Parliament has since reinstated separate male and female toilets alongside gender-neutral facilities, while other institutions continue to examine how their policies may need to be revised.

The outcome of this latest legal action could have far-reaching implications for how equality law is applied in schools and prisons across Scotland.