Swinney told to act after court rules sex means biology in law

The Herald Scotland

24-04-2025

In a unanimous ruling after a lengthy legal battle, the UK's highest court made clear that a Gender Recognition Certificate (GRC) does not change a person's sex for the purposes of the Equality Act 2010. The court ruled that 'man' and 'woman' in that Act refer to biological sex, not acquired gender.
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The head of the EHRC described the ruling as 'enormously consequential.' The commission is expected to lay an updated statutory Code of Practice before the UK Parliament by the summer.
Scottish Government ministers were due to meet with the watchdog on Thursday, but the meeting has now been postponed by the EHRC.
At Holyrood, Scottish Tory leader Russell Findlay urged the First Minister to act now rather than wait for the new guidance. He said Swinney should 'end the era of divisive gender politics' and break with his predecessor, Nicola Sturgeon.
Findlay claimed female prisoners 'were the first target of SNP gender ideology.'
'Today, a prison officer told me that staff still face disciplinary action if they call male sex offenders identified as female 'he' or 'him'.
'Now, following the scandal of a rapist in a women's prison, there are still male prisoners in the female estate — and that's despite last week's seismic court ruling.
'So will John Swinney now instruct the Scottish Prison Service to ensure male prisoners do their time in men's prisons?'
Mr Swinney replied: 'As the Government has set out to Parliament already, we are considering the details of the Supreme Court judgment, taking the necessary advice from the Equality and Human Rights Commission about the application of that advice, and that will have a bearing on the judgments that are made in relation to public services.
'I would expect all public bodies to operate on that basis and within the law.'
Double rapist Isla Bryson was initially going to be sent to the women's estateThe Scottish Prison Service (SPS) trans prisoner policy was published in late 2023 following public outcry over the Isla Bryson case.
Bryson first appeared in court facing rape charges under the name Adam Graham. After being convicted, the SPS initially diverted Bryson to Cornton Vale — Scotland's only women's prison — rather than to HMP Barlinnie, as originally planned. The decision sparked widespread backlash and prompted a review of SPS practices.
The resulting policy states that a transgender woman 'will not be eligible to be considered for admission or transfer to a women's prison' if convicted of serious offences including murder, assault, robbery, abduction, rape, and sexual harassment.
However, the policy includes an exception: the SPS's Risk Management Team, and subsequently an executive panel, may approve such a transfer if 'there is compelling evidence that they do not present an unacceptable risk of harm to those in the women's prison.'
It also states that prisoners with a GRC can be housed 'in accordance with their sex at birth, if it is considered necessary to support people's safety and wellbeing.'
It is not known how many biologically male prisoners are currently housed in the female estate.
During FMQs, Mr Findlay said the First Minister had 'a chance to be his own man and go a different way from his closest ally, who isn't even showing up for work anymore.'
'He can guarantee all public bodies will have new and lawful policies to respect women's rights in place by summer.
'He can admit that trans women are not women.
'He could hold his hands up and apologise fully and sincerely.
'John Swinney could ditch Nicola Sturgeon's toxic legacy once and for all.
'Will he now take the chance to finally bring to an end the era of divisive gender politics?'
In response, Mr Swinney pointed to remarks made in 2018 by then-Conservative MSP Alison Harris — speaking on behalf of current MSP Annie Wells — during debate on the Gender Representation on Public Boards (Scotland) Bill, legislation that was later challenged in court.
According to the official Holyrood record, Wells said she was 'pleased' by a Labour amendment to broaden the definition of 'woman' to include trans women without a GRC.
Russell Findlay and Tess White (Image: Jane Barlow) Mr Swinney said: 'I'm simply reading that into the official report, because the Conservatives have changed their position on this, and they have changed their position from what they said in 2018.
'What my Government will do is what it always does: follow the rule of law, take careful account of the decisions and the context in which we take our decisions, and act wisely to protect the rights of all within Scotland.
'The first duty of the Government is to protect the rights of everyone in Scottish society.'
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In a blog post, policy group Murray Blackburn Mackenzie said there was no reason for the government to wait for the EHRC's new Code of Practice, pointing out that it 'does not impose legal obligations.'
They added: 'The Supreme Court's judgment therefore takes priority over any EHRC Code, where the two conflict. The Code can at most 'colour in' what the law requires.
'The Scottish Government therefore has no excuse for any delay in taking action to ensure that public bodies falling within its responsibility are taking basic steps now to ensure that they are acting within the law.
'Given the widespread adoption of policies which replace sex with self-identified gender across the Scottish public sector, many will not be.'
The Scottish Prison Service has been approached for comment.