The first transgender judge in the United Kingdom 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, 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 several gender-critical groups including Sex Matters and a coalition of three campaigning organisations: LGB Alliance, The Lesbian Project and Scottish Lesbians.
McCloud, 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, relating to the rights to respect for identity, family, human existence, and the right to a fair trial 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 Equality and Human Rights Commission (EHRC). This has attracted criticism from leading charities and service providers over the brevity of its consultation period.
Meanwhile, 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 reports suggest For Women Scotland has applied to the court of session for permission to proceed with an action that, if successful, would quash schools guidance allowing trans pupils to 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.
