Scottish Court Rules Against Biological Males Being Held In Women's Prisons

Authored by Jonathan Turley,

There is a major ruling in Scotland where a court declared that it is generally unlawful to house a transgender biological male in a women’s prison. The decision follows the ruling of the top UK court that a woman is defined by her biological gender at birth. The timing is notable as we await a couple of transgender rulings from our own Supreme Court this week. The decisions also highlight the anomaly of police continuing to arrest people who object to transgender policies under the aggressive anti-free speech laws in the United Kingdom.

In her published opinion, Lady Ross declared that “in all the circumstances, the prison’s guidance is unlawful.” The decision came after a controversy involving convicted rapist Isla Bryson – formerly known as Adam Graham. Despite being convicted of raping two women in 2023, Bryson was initially sent to the Cornton Vale women’s prison.

Scotland continues to crack down on free speech through draconian laws.

The Hate Crime and Public Order (Scotland) Act 2021 illustrates how these laws create a slippery slope of speech criminalization as more and more speech is banned. We previously discussed the law when it was first introduced.

The new crime covers “stirring up hatred” relating to age, disability, religion, sexual orientation, transgender identity or being intersex. That crime covers insulting comments and anything “that a reasonable person would consider to be threatening or abusive.”

It is enough that a person is found to have likely understood that the comments would be abusive or insulting as opposed to intending to be abusive or insulting.

Figures such as J.K. Rowling have been threatened with arrest for her public position in opposition to transgender laws.

This creates a curious conflict, as courts support such views when enforcing biological limits on access to prisons and other areas.

In the United States, there is a division on the issue. Some states, like Maine, require correctional housing to match the gender identification of the inmate rather than the biological sex at birth. Faced with lawsuits and legislative inquiries, the Maine Correctional Department continues to defend its policy. Other states have barred such transgender placement.

This coming week, we are awaiting major rulings on transgender controversies in the United States.

In Little v. Hecox,  the Court is considering whether laws that categorically require sports participants to compete based on their biological sex violate the Equal Protection Clause of the Fourteenth Amendment.

In West Virginia v. B.P.J., the Court is considering two questions: (1) whether Title IX prevents a state from limiting sports teams to biological sex at birth, and (2) whether such a limitation violates the Equal Protection Clause.