One of the most egregious failures of the recent UK Supreme Court ruling on trans rights was the judges’ refusal to consult with any trans people over a decision that would deeply impact their lives. Now the country’s first out trans judge is going to force the high court to reckon with her presence.
Dr Victoria McCloud became the first openly transgender judge when she was appointed as a Queen’s Bench Master in 2010. Although she stepped down last year, she isn’t taking any time off fighting for the rights of trans people, even if that means taking on the UK Supreme Court.
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Earlier this month, the UK Supreme Court ruled that the definition of sex under the 2010 Equality Act is binary and based on biology. Since then, the Equality and Human Rights Commission has issued guidance excluding trans people from facilities that align to their gender in hospitals, restaurants and stores.
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The case was brought by For Women Scotland, a so-called gender critical group backed by JK Rowling. Although judges heard testimony from human rights group Amnesty International, they declined to hear from trans advocates before handing down their unanimous ruling.
“Trans people were wholly excluded from this court case,” Dr McCloud told the BBC. “I applied to be heard. Two of us did. We were refused.
“[The court] heard no material going to the question of the proportionality and the impact on trans people. It didn’t hear evidence from us. The Supreme Court failed in my view, adequately, to think about human rights points.”
In particular, the ruling puts the UK in conflict with the European Convention on Human Rights. Now Dr McCloud is planning to take the government on in the European Court over the legal limbo the ruling has left trans people in.
“[This judgement] has left me two sexes at once, which is a nonsense and ironic, because the Supreme Court said that sex was binary,” Dr McCloud explained.
“I am a woman for all purposes in law, but [now under this judgement] I’m a man for the Equality Act 2010. So I have to probably guess on any given occasion which sex I am.”
At the end of the day, the ruling is about far more than legal clarity. “The approach here is really to treat normal people like me, who just happened to change legal sex decades ago, people who’ve served their country, worked in the military, doctors, lawyers, nurses, just ordinary, hard-working, peaceable people, as if we’re a threat to be contained and segregated,” Dr McCloud said.
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