SNP accused of undermining Supreme Court gender ruling

Scotland’s First Minister John Swinney is facing increasing criticism after reports emerged that his Government has made a behind-the-scenes attempt to limit the impact of the Supreme Court’s landmark ruling on sex and women’s spaces.

In 2025, the Supreme Court ruled unanimously that the terms “man” and “woman” in the Equality Act 2010 refer to biological sex, not gender identity.

The judgment followed a legal challenge brought by campaign group For Women Scotland and was intended to provide legal clarity on access to single-sex spaces, including toilets, changing rooms, refuges and prisons.

Despite publicly stating that the Scottish Government accepts the ruling, ministers have now asked a court to consider whether applying it fully in prisons would breach the human rights of transgender inmates.

According to reports, the Government is seeking a “declaration of incompatibility”, a rarely used legal mechanism that could prevent the ruling from being enforced in the prison system.

The Scottish Prison Service currently allows biological men who identify as women to be housed in female prisons.

Campaigners argue that this policy places vulnerable female inmates at risk and directly contradicts the Supreme Court’s interpretation of the Equality Act.

Joan Smith, the former Chair of the Mayor of London’s Violence Against Women and Girls Board, described the Government’s position as “extraordinary”.

She accused ministers of prioritising the rights of transgender offenders over the welfare of female prisoners, and warned that granting a declaration of incompatibility would undermine the Supreme Court’s decision and reintroduce legal confusion the ruling was designed to resolve.

For Women Scotland has launched a judicial review challenging the prison policy, arguing that women should not be required to share intimate spaces with biological males.

The group says the Government’s legal approach risks weakening protections for women across other single-sex services.

The issue has prompted criticism from within the SNP as well as opposition parties.

SNP MSP Michelle Thomson said she was “very distressed” by the Government’s actions, questioning how they align with statements made in Parliament.

Conservative MSP Tess White described the move as a “shameful” attempt to overturn a “crystal clear” ruling.

For Women Scotland has accused two SNP ministers of breaching the ministerial code by claiming the Government accepted the judgment while secretly seeking to undermine it.

John Swinney has rejected the accusation, stating that the ministerial code was “not engaged” and that ministers are acting to ensure legal compliance with human rights obligations.

The judicial review is ongoing, with the outcome expected to have significant implications for the application of the Equality Act and the future of single-sex spaces in Scotland.