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Britain’s first transgender judge is taking the UK to the European court of human rights over the supreme court’s ruling on biological sex.
The UK supreme court ruled earlier this month that the terms “woman” and “sex” in the Equality Act referred only to a biological woman and to biological sex, with subsequent guidance from the equality watchdog amounting to a blanket ban on trans people using toilets and other services of the gender they identify as.
Victoria McCloud, a retired judge, is applying to the European court of human rights to bring action against the UK for infringement of her article 6 rights.
Article 6 of the European convention on human rights (ECHR) guarantees the right to a fair trial in both criminal and civil matters.
Last year, McCloud sought leave to join the litigation in the supreme court case brought by the gender critical campaigners For Women Scotland against the Scottish government, arguing it could significantly affect legal protections for transgender women, but was rejected.
McCloud, now a litigation strategist at W-Legal, told the Guardian: “The basis is that the supreme court refused to hear me, or my evidence, to provide them with information about the impact on those trans people affected by the judgment and failed to give any reasons.”
“Those are two basic premises of normal justice. There were protest groups speaking on behalf of women in this court case, but ordinary women were not actually represented as a whole.
“The disabled were not represented, and now we’re seeing the Conservatives saying that trans people have got to use the disabled loos, which impacts the lives of disabled people. The impacts of all of this have not been dealt with.”
The supreme court judgment, and subsequent guidance from the Equality and Human Rights Commission (EHRC), the watchdog that enforces the Equality Act, has sent shock waves through the UK’s transgender community and left many business and services unclear about what facilities they are expected to offer.
In an “interim update” on how the ruling should be interpreted, the EHRC said on Friday that in workplaces and services open to the public, such as hospitals or cafes, “trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities”.
Over the weekend, the Cabinet Office minister Pat McFadden said it was “a logical consequence” that transgender people would be banned from using the toilets of the gender they identify as.
McCloud said that, rather than resulting in clarity, the judgment and subsequent government and commission statement had “brought chaos”.
“There’s chaos because we’ve got the supreme court saying one thing, and we’ve got the government and the EHRC saying another, we’ve got planning rules that the last government set, whereby inclusive bathrooms are supposed to be discouraged.”
McCloud’s comments came as Carla Denyer MP, the Green party co-leader, asked how the government would respond “both to distress within the trans community and further confusion for employers, businesses and service providers who are trying to understand what the supreme court ruling means for them”.
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In a letter to the equalities minister Bridget Phillipson, Denyer asked whether trans and non-binary people had been consulted in the drafting of the EHRC’s latest update and warned of the “risks of encouraging vigilante policing of public facilities”.
Denyer repeated her call for the interim update to be withdrawn “until it is possible for guidance to be issued which provides real clarity and has taken into account the experiences of all those who will be affected by it”.
Resident doctors working in the NHS also condemned the supreme court’s ruling on gender as having “no basis in science or medicine”.
Medics at the British Medical Association’s (BMA) resident doctors conference in London passed a motion stating that “attempting to impose a rigid binary has no basis in science or medicine”.
While the motion was passed at the conference it will not become BMA policy unless voted on at the union’s annual meeting later this year.
There are tens of thousands of resident doctors – formerly known as junior doctors – working in the NHS.
