The UK’s first transgender judge has launched a case against the UK in the European court of human rights challenging the process that led to the supreme court’s ruling on biological sex.
The retired judge Victoria McCloud, who is now a litigation strategist at W-Legal, is seeking a rehearing of the case, arguing that the supreme court undermined her article 6 rights to a fair trial when it refused to hear representation from her and did not hear evidence from any other trans individuals or groups.
The move comes as For Women Scotland, the gender-critical campaign group that brought the supreme court case, announced it was suing the Scottish government, accusing it of refusing to abide by April’s judgment, in particular around schools and prison policy.
The UK supreme court ruled in April that the legal definition of a woman in the Equality Act 2010 did not include transgender women who hold gender recognition certificates (GRCs). Subsequent guidance from the equality watchdog amounted to a blanket ban on trans people using toilets and other services of the gender they identify as.
Last year, McCloud sought leave to join the litigation in the supreme court case brought by For Women Scotland against the Scottish government, arguing it could significantly affect legal protections for transgender women with GRCs, but the application was rejected.
The court took interventions from a number of gender-critical groups including Sex Matters and a group of three campaigning organisations comprising LGB Alliance, The Lesbian Project and Scottish Lesbians.
McCloud, who is supported by Trans Legal Clinic and W-Legal, said the application was brought under articles 6, 8 and 14 of the European convention on human rights, “essentially the rights to respect for who I am, my family, my human existence, my right to a fair trial in matters determining my own freedoms and obligations without discrimination.
“No representation or evidence had been included from us in the 8,500 group [the estimated UK population of people with GRCs who are diagnosed as transsexual]. I was refused. The court gave no reasoning.
“The court reversed my and 8,500 other people’s sex for the whole of equality law … We are now two sexes at once. We are told we must use dangerous spaces such as male changing rooms and loos when we have female anatomy. If we are raped we must go to male rape crisis. We are searched by male police, to ‘protect’ female police from, I assume, our female anatomy.”
April’s ruling has wide-ranging implications for service providers, public bodies and businesses, with most awaiting an updated code of practice for public bodies from the equalities watchdog, the Equality and Human Rights Commission. This has attracted criticism from leading charities and services providers over the brevity of its consultation period.
Elsewhere, For Women Scotland and Sex Matters have criticised the Scottish government for failing to implement the supreme court ruling swiftly enough, citing “extraordinary pushback” against the judgment.
The Scottish government has repeatedly stated it is awaiting the updated EHRC code, but the Sunday Times reported that For Women Scotland had applied to the court of session for permission to proceed with an action that, if successful, would quash schools guidance that states trans pupils can use toilet and changing facilities that align with their lived gender, and prisons policy that continues to allow some trans women to be housed in the female estate, based on risk assessment.
According to sources with knowledge of the process, the revised code is expected to be delivered to the equalities minister, Bridget Phillipson, this week. After she has approved it, the new code will be laid before parliament for 40 days, as happens with all statutory instruments, during which time MPs or peers may pass a motion to prevent it from having legal effect, although in practice such intervention happens rarely.
Earlier this month the EHRC chief executive, John Fitzpatrick, took the unusual step of posting a blog in response to critical media reports, rejecting allegations that the commission was dragging its feet and defending the use of AI to assess consultation responses.
“Our use of supervised AI technology alongside expert legal analysis is a responsible and widely used approach that ensures we can give proper consideration to all responses while delivering the guidance that public bodies urgently need,” he said.
