The UK’s first transgender judge, Victoria McCloud, has filed a case against the UK at the European Court of Human Rights, contesting the process that led to the Supreme Court’s recent ruling on biological sex.
McCloud, now a litigation strategist at W-Legal, argues that the court violated her Article 6 rights to a fair trial by refusing to hear representations from her or evidence from transgender individuals and groups. She is seeking a rehearing, supported by the Trans Legal Clinic and W-Legal, under Articles 6, 8, and 14 of the European Convention on Human Rights, which cover fair trial rights, respect for identity and family life, and protection from discrimination.
The case follows the Supreme Court’s April judgment that the legal definition of “woman” under the Equality Act 2010 does not extend to transgender women with Gender Recognition Certificates (GRCs). The Equality and Human Rights Commission later issued guidance that critics say amounts to a blanket ban on trans people accessing single-sex spaces such as toilets, changing rooms, and women’s services.
McCloud previously sought permission to intervene in the Supreme Court case brought by campaign group For Women Scotland against the Scottish government but was refused. The court did, however, accept interventions from several gender-critical groups, including Sex Matters, LGB Alliance, The Lesbian Project, and Scottish Lesbians.
In a statement, McCloud criticised the ruling’s impact on the estimated 8,500 people in the UK with GRCs:
“The court reversed my and 8,500 other people’s sex for the whole of equality law. We are told we must use male facilities despite female anatomy, and in cases of sexual violence, we would be directed to male services.”
The ruling has far-reaching consequences for service providers, public bodies, and businesses, many of which are awaiting updated Equality Act guidance from the EHRC. Critics, including leading charities, have condemned the brevity of the consultation period.
Meanwhile, For Women Scotland has launched new legal action against the Scottish government, accusing it of failing to comply with April’s ruling, particularly in schools and prisons policy. Reports suggest the Court of Session will soon decide whether to allow the case to proceed.
The EHRC is expected to deliver its revised code of practice to Equalities Minister Bridget Phillipson this week, after which it will go before parliament. Earlier this month, EHRC chief executive John Kirkpatrick defended the process in a blog post, rejecting claims of delays and explaining that supervised AI was used alongside legal analysis to review consultation responses.
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