A TOP barrister has said he hopes a legal challenge against the Supreme Court’s ruling that a woman is defined by “biological sex” will be more successful in the Scottish courts.
KC Jolyon Maugham, director of Good Law Project, called on advocates and solicitors north of the Border who were “troubled” by the ruling to help with the case.
The legal campaign group has previously said it believes the ruling means that the UK is now not complying with its international law obligations – the Human Rights Act and European Convention of Human Rights.
The Supreme Court ruled that under the Equality Act 2010 “woman” is defined by “biological sex”, and does not include a transgender woman with a Gender Recognition Certificate (GRC).
The Equality and Human Rights Commission (EHRC) then released guidance excluding trans people from single-sex services, including toilets, dubbed “segregation” by furious trans rights campaigners.
“I'm really clear in my own mind that our [UK] law is no longer compatible with our international law obligations,” Maugham told The National in an exclusive interview.
The group has launched a crowdfunder to take the case to the High Court, but is open to taking the case to Scotland, where Maugham told The National he believes could have a better chance of success.
The group will be seeking a declaration of incompatibility, and has also not ruled out taking the case to the European Court of Human Rights in Strasbourg.
Maughan told The National that the Good Law Project has a “long history” of litigating in Scotland.
“When English courts have got stuff wrong and when English courts have been hostile, Good Law Project has worked north of the Border with the Scottish legal establishment, with members of the Scottish Faculty of Advocates to bring cases before Scottish courts,” he explained.
“The law should not be different, but English courts as a whole are in a very, very bad place when it comes to the protection of the rights and liberties of trans people.
“It would be my expectation that Scottish courts would do what courts are supposed to do, which is to apply the law, not to allow their personal prejudices to interfere with their judicial function.”
Asked if he believed the legal challenge would be more successful in Scotland, Maughan said: “Our experience is that when you litigate in a country that believes X, you get X results. And when you litigate the same point in a country that believes Y, you get Y now.
“That is true, even if the law is exactly the same in countries X and Y.
“And I think, as with Brexit, where the Good Law Project ran very successfully a number of cases in Scotland, that people were litigated in England and losing on, we ran them in Scotland and we won them.
“I don't think we won because we had a better legal team. I think we won because Scottish courts saw the issues differently to English courts.”
A legal team involving several KCs and at least one trans barrister has been put together, with support from policy specialists in equalities law.
Maughan added: “If there are Scottish Advocates or solicitors out there who are profoundly troubled by the United Kingdom Supreme Court's decision to descend into the area of policy making when it comes to the protection of this incredibly vulnerable community, we would very much like to hear from them.”
Prime Minister Keir Starmer (below) said following the ruling that a “woman is an adult female and the court has made that absolutely clear”.
Maughan said the group’s goal was to win a declaration of incompatibility and put “enormous pressure” on the Labour government.
“If a court finds that it is ignoring its obligations under the European Convention on Human Rights, that is going to be quite a big deal,” he explained.
“Goodness knows what the Attorney General, who has really hung his flag on the mast of us observing international human rights laws, and even the Prime Minister has said, we are a country that abides by the rule of law.
“Well, if he ignores a declaration of compatibility, he will have to abandon perhaps the only principle he has left. That's what we are focused on.”
It comes after hundreds of protesters took to the streets outside of the EHRC offices in Glasgow calling for the interim guidance to be scrapped.
