Female prisoners are being treated as “pawns” by an “Orwellian” government policy which allows transgender inmates to be placed in women’s jails, a court has heard.
Advocate Aidan O’Neill KC accused Scottish ministers on Tuesday of breaching the human rights of biological females in jails with the practice.
Mr O’Neill was speaking on the first day of a judicial review at the Court of Session in Edinburgh brought by campaign group For Women Scotland (FWS).
The organisation believes that biological men who identify as women should not be allowed in women’s prisons.
Current Scottish Prison Service (SPS) guidance allows for a transgender woman to be admitted into the female prison estate if the inmate does not meet the violence against women and girls criteria, and there is no other basis “to suppose” they could pose an “unacceptable risk of harm” to those also housed there.
FWS has brought its case before judge Lady Ross at Scotland’s highest civil court and is seeking a legal order declaring the policy over the management and placement of transgender prisoners to be “unlawful”.
It is also calling for the court to order ministers to abandon the policy.
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In legal arguments published ahead of the three-day hearing, the Scottish government said a “blanket rule” about placing transgender prisoners in jails according to their biological sex “would violate the rights of some prisoners”.
The government plans to argue that placing inmates in a prison for those of the opposite biological sex “may be required” to prevent a violation of the Human Rights Act and Scotland Act 1998.
As proceedings got under way, Mr O’Neill said the policy meant that biological men convicted of serious violent offences, including murder, were being placed in jail alongside vulnerable women.
He said women prisoners were being “gaslit” and argued that their safety was being put at risk.
Mr O’Neill also said the policy breached FWS’s landmark UK Supreme Court win last year which stated that the words “men”, “women” and “sex” refer to biological sex – and which confirms that public authorities may lawfully provide female-only spaces that exclude men.
‘Traded as pawns for political gain’
Mr O’Neill said: “What’s happening here is that women in prison are being treated and used by the Scottish government in this case to be traded as pawns for political gain.
“Who knows what backroom deals have been made between the Scottish government and other parties, perhaps that insists that this case be defended and fought before the court.
“This is because the law isn’t in their favour. What we have, it appears, is the insistence on the maintenance, even in the light of the decision of the UK Supreme Court – which the Scottish ministers lost soundly, roundly, completely and unequivocally – that this policy has somehow to be maintained.
“But it’s a policy which is based on, I submit, institutional neglect of and contempt for women’s rights.
“It’s almost – if I can use Orwellian terms for it – Animal Farm like.
“Women good. But men identifying as women better. Or all women are equal, but men identifying as women are more equal than others.”
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Mr O’Neill stated he would be using the term women when he means women, and man when he means man.
‘Women are being psychologically manipulated’
Mr O’Neill claimed women prisoners were being treated as “human shields” by the Scottish ministers and said the policy had the effect of “gaslighting” females in the prison system.
He added: “Women are being psychologically manipulated into questioning their own sanity or ability to reason by this policy, because it’s being kind to trans-identifying men.”
Mr O’Neill said there was no ruling from the European Court of Human Rights in Strasbourg which supports the policy.
The hearing continues.
