Monday, August 18, 2025 - 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, 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.
According to sources with knowledge of the process, the
revised code is expected to be delivered to the equalities minister, Bridget
Phillipson, this week. Once approved, the new code will be laid before
parliament for 40 days, during which MPs or peers may pass a motion to prevent
it from taking legal effect, though such intervention is rare.
Earlier this month, EHRC chief executive John Kirkpatrick
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.
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