The determination of the Scottish Government to put female inmates at risk by placing male prisoners in women’s jails is extraordinary to behold. According to The Times, the SNP has made a secret attempt to challenge last year’s Supreme Court judgment, which concluded that the terms “man” and “woman” refer to biological sex under the Equality Act 2010. Despite publicly accepting the ruling at the time, Scottish ministers are evidently more engaged, behind the scenes, with the rights of transgender offenders than the welfare of some of the most vulnerable women in the population.

The process they’re pursuing is arcane: they’ve asked privately for a “declaration of incompatibility” which would mean that removing trans women from women’s prisons would be an unlawful breach of their human rights. If granted, it would undermine the judgment and throw UK equality law into the type of confusion the Supreme Court sought to clear up. Double win for trans activists, in other words.

For Women Scotland, the gender-critical advocacy group that took the Scottish Government to the Supreme Court last year, has had to bring another legal case, seeking to overturn Scottish Prison Service policy which allows “trans women” to serve time in the women’s estate. At first sight, it’s an astonishing policy for SNP ministers to defend. The right of female prisoners not to have to share bathrooms and other facilities with biological males is one of the easiest cases to make.

Why any Left-leaning political party would prioritize convicted male offenders over women is difficult to comprehend, until it becomes clear that the prisons policy is a Trojan horse. Scottish ministers have been forced by the judgment to rewrite guidance about access to bathrooms and school sports in order to exclude biological males. While claiming to accept the ruling, however, they appear to have hit upon a means of challenging it in utmost secrecy. 

In November, ministers issued a formal notice to the Advocate General for Scotland, Baroness Smith of Cluny KC, about their intention to seek the little-known “declaration of incompatibility” if other attempts to resist the FWS judicial review are unsuccessful. Last month, in a letter to the First Minister, John Swinney, FWS accused two ministers, Angela Constance and Neil Gray, of breaking the ministerial code by stating at Holyrood that the Scottish Government accepts the Supreme Court’s judgment while secretly trying to undermine it. Swinney rejected the complaint earlier this week, claiming that the ministerial code was “not engaged”. 

Yet it’s hard not to conclude that the SNP’s public and private positions on the judgment — and single-sex spaces — are incompatible. The same can be said of the UK Government where the Women and Equalities Minister, Bridget Phillipson, has shamefully failed to table new guidance from the Equality and Human Rights Commission before Parliament. The guidance has been rewritten to reflect the judgment and the delay has given all sorts of organizations an excuse, feeble though it is, to continue breaking the law. 

What all these machinations demonstrate is the continuing commitment of both governments to trans ideology. Whether they truly believe that the rights of trans individuals are more important than those of half the population, or merely fear a backlash from activists, doesn’t really matter. It’s becoming clear that the upper echelons of liberal political parties in the UK have made a choice — and they’re not on the side of women. 

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Joan Smith is a novelist and columnist. She was previously Chair of the Mayor of London’s Violence Against Women and Girls Board, and is on the advisory group for Sex Matters. Her book Unfortunately, She Was A Nymphomaniac: A New History of Rome’s Imperial Women was published in November 2024.

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