Gaston cites Scottish ruling that prison accommodation must follow biological sex ahead of Stormont vote

Inset: North Antrim TUV MLA Timothy Gaston

A fresh court ruling in Scotland on the accommodation of transgender prisoners has been welcomed by TUV MLA Timothy Gaston, who says it reinforces the case for a proposed change to Northern Ireland law currently before the Assembly.

Mr Gaston was responding after Lady Ross, sitting in Scotland’s Court of Session, ruled that guidance issued by the Scottish Prison Service allowing transgender prisoners to be accommodated in prisons of the opposite biological sex was unlawful and amounted to a “mis-statement of the law”.

The judgment centred on the interpretation of legal provisions requiring separate accommodation for male and female prisoners, with the court finding that those categories should be understood according to biological sex.

Mr Gaston said the ruling had significant implications beyond Scotland and raised questions about current arrangements within Northern Ireland’s prison system.

Assembly amendment due for debate

The North Antrim MLA has tabled Amendment 97 to the Justice Bill, which is expected to be debated at Stormont this week.

His proposed amendment would place additional requirements on the Department of Justice regarding prison accommodation while defining “man” and “woman” using the meanings set out in Section 212(1) of the Equality Act 2010.

Mr Gaston said the Scottish judgment vindicated concerns that he and others have raised regarding prison accommodation policies.

He described the ruling as “a significant victory for common sense and for the rights of female prisoners”.

According to Mr Gaston, the court made clear that where legislation requires separate accommodation for men and women, those categories are based on biological sex and cannot be altered through policy guidance.

He argued that the judgment should prompt “serious reflection” within both the Northern Ireland Prison Service and the Department of Justice.

Focus on Northern Ireland prison rules

Mr Gaston pointed to Rule 90 of the Prison and Young Offenders Centre Rules (Northern Ireland) 1995, which states that women prisoners must be held in separate accommodation.

He said there were “striking parallels” between the legal framework considered by the Scottish court and the statutory provisions that apply in Northern Ireland.

“It is therefore difficult to see how guidance which permits male prisoners who identify as women to be accommodated in female prison accommodation can be reconciled with the clear wording of our own statutory framework,” he said.

The MLA said the timing of the Scottish judgment was particularly significant given that Assembly members are due to consider his amendment in the coming days.

“The Scottish Court has now confirmed what ordinary people instinctively understand: that policies and guidance cannot override the law and that the rights of women to single-sex prison accommodation must be respected,” he said.

What the amendment would do

Under the proposed amendment, the Department of Justice would be required to issue guidance on the operation of prison accommodation rules.

The amendment would also allow the Department to make individual accommodation arrangements where necessary to safeguard the welfare or dignity of a prisoner.

However, those arrangements could not include the accommodation of a man in prison accommodation where one or more women are being held.

The amendment further specifies that the definitions of “man” and “woman” would be those contained within the Equality Act 2010.

Further questions for the Justice Minister

Mr Gaston said he intends to seek clarification from the Justice Minister on whether legal advice has been obtained regarding the compatibility of current Northern Ireland Prison Service guidance with Rule 90 of the 1995 Rules and the recent Scottish judgments.

The debate comes as wider legal and political discussions continue across the UK over the operation of single-sex spaces and the interpretation of legislation relating to biological sex and gender identity.

Assembly members are expected to consider Mr Gaston’s amendment during the Justice Bill’s passage through Stormont, where it will be subject to debate and a vote.