The UK’s first transgender judge is appealing this month’s landmark ruling by the Supreme Court at the European Court of Human Rights.
On 16 April, five judges unanimously ruled that sex for the purposes of the Equality Act 2010 means biological sex, prompting celebrations for women’s rights campaigners and distress for the trans rights lobby.
The Equality and Human Rights Commission (EHRC) published an update at the weekend on the practical implications of the judgment for employers and public bodies, and will commence a two-week consultation for a revised code of practice in mid-May.
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Victoria McCloud, who retired as a High Court judge last year, will take the UK government to the Strasbourg, claiming the Supreme Court ruling and subsequent advice from the equalities regulator have violated her fundamental human rights.
McCloud told the BBC that, far from clarifying the law, the Supreme Court had not considered how such an outcome would impact the lives of trans people.
“Trans people were wholly excluded from this court case,” said McCloud. “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.”
However, the Supreme Court did consider arguments in the case of For Women Scotland v Scottish Ministers on trans issues from the human rights campaign group Amnesty International.
Last week, Akua Reindorf KC, an EHRC commissioner, said: “The Supreme Court does not hear evidence about lived experience; it considers legal arguments. A proposed intervener must show that they can make a distinctive contribution to the legal argument and assist the court with issues that go wider than their personal interest.”
She added that no trans advocacy groups intervened.
Maya Forstater, co-founder and chief executive of Sex Matters, told the BBC: “McCloud may wish to undertake this challenge as a personal pursuit, but… any chance of success lies more in the realm of fantasy rather than reality.
“The Supreme Court has just laid out in a clear and unanimous decision precisely how the Equality Act has to be interpreted, and one of the guiding principles of this exercise in statutory interpretation was to ensure that the Equality Act was compatible with the Human Rights Act.”
Kate Barker, chief executive of campaign group LGB Alliance, said: “The needs and wishes of a tiny number of trans women like Victoria McCloud cannot supersede the rights of 34 million women in the UK who need and deserve the privacy, dignity and safety of single-sex spaces.”
Yesterday, it emerged that resident doctors – formerly junior doctors – condemned the Supreme Court’s ruling on sex. The British Medical Association’s resident doctors conference passed a motion stating that “attempting to impose a rigid binary has no basis in science or medicine”. It could only become BMA policy if voted on at the union’s annual meeting in June.
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