THE UK's first trans judge has announced she is planning on taking the UK Government to the European Court of Human Rights (ECHR) over the Supreme Court's gender ruling.
Dr Victoria McCloud – the only judge in the UK to publicly say they are trans – said the new guidance issued by the UK's Equalities and Human Rights Commission (EHRC) violated her human rights and she felt "contained and segregated".
She said that the Supreme Court had failed to consider human rights arguments that would have been put by trans people and the judgment had left her with the legal "nonsense" of being "two sexes at once".
Earlier this month, the Supreme Court ruled that "women" were defined by biological sex under the Equality Act 2010.
The EHRC issued "interim guidance" on Friday which stated that workplaces had a legal obligation to provide single-sex toilets and that public spaces did not – but that offering only mixed-sex spaces could be discrimination against women.
In workplaces, it said that trans men and women should not be allowed to use spaces meant for their acquired gender – but also that they could be barred from using spaces which align with their biological sex.
However, it added: “Trans people should not be put in a position where there are no facilities for them to use.”
Dr McCloud was one of at least two trans people who had wanted to present arguments to the Supreme Court about how its outcome would affect them.
Courts have the discretion to consider arguments from outside "interveners" – but judges often reject such interventions if they conclude they are going to hear all the relevant arguments from others.
Dr McCloud, 55, came out as trans in her twenties and is one of around 8000 people to have legally changed their sex on their birth certificate.
She went on to be a High Court Master – judges who often manage complex, expensive cases – but stood down a year ago, saying she could not continue her judicial work amid an increasingly difficult public debate that had led to her being singled out for abuse and criticism.
Both Prime Minister Keir Starmer and First Minister John Swinney have accepted the outcome of the Supreme Court ruling, saying that it brings "clarity".
However, Dr McCloud said that the court had not considered how such an outcome would impact the lives of trans people.
She told the BBC: "Trans people were wholly excluded from this court case. 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."
Dr McCloud said that she and other campaigners will go to the ECHR in Strasbourg to seek a declaration that the actions of the UK Government and Supreme Court judgment "violate [her] fundamental human rights".
She added: "Just as the Prime Minister didn't know what a woman was, actually the Supreme Court don't know because they haven't defined biological sex.
"The answer [in my view] is that a woman in law is someone with the letter F on her birth certificate."
Campaigners have argued that the Supreme Court ruling did not take into account the complexities of biology, pointing towards intersex cases as an example of where biological sex is not binary.
Dr McCloud said: "[This judgment] has left me two sexes at once, which is a nonsense and ironic, because the Supreme Court said that sex was binary.
"I am a woman for all purposes in law, but [now under this judgment] I'm a man for the Equality Act 2010. So I have to probably guess on any given occasion which sex I am.
"This is going to make matters much, much more dangerous. I am now expected to use male spaces.
"I have female anatomy. It isn't safe for women to use the men's loos. It is as simple as that."
McCloud added: "The approach here is really to treat normal people like me, who just happened to change legal sex decades ago, people who've served their country, worked in the military, doctors, lawyers, nurses, just ordinary, hard-working, peaceable people, as if we're a threat to be contained and segregated."
