An appeal in the Supreme Court threatens to put trans rights back 20 years, according to Good Law Project, which is supporting a pioneering trans rights campaigner Professor Stephen Whittle and Dr Victoria McCloud – the first trans judge in the UK – to intervene, so that trans people’s experiences will be heard.
Before Stephen Whittle got his gender recognition certificate in 2005, life was a huge challenge. “I was a legal stranger to my children,” he recalls. If his wife had died, his children could have been placed in foster care. “I could not bear the thought of how truly awful that situation would be for our children.”
Now the life he has built is under threat. For Women Scotland (FWS) have been pursuing a campaign against legal protections for trans people through the courts, and are now trying to get the Supreme Court to tear up the Equality Act.
If FWS win, the case could roll back basic freedoms trans people with Gender Recognition Certificates have had since the Gender Recognition Act was passed in 2004. And the decision could be made without any input from trans people who would be so deeply affected.
Good Law Project is supporting Stephen, a pioneering trans rights campaigner, and Victoria, the first trans judge in the UK, to intervene in this case so that their experiences can be taken into consideration by the Supreme Court.
“I spent years being dismissed from jobs because of my ‘otherness’ and excluded from social events – family, public and private.”
Victoria warns the court’s decision could affect a part of the trans community who “are now elderly and may be unaware of the case”.
Trans women face high levels of abuse at work, at home and in public because of their reassigned gender. If the court does rip up the Equality Act, Victoria says it would be “unsafe” as she would lose her protection as a woman in discrimination claims.
Victoria would also lose rights to equal pay with men.
“If men are paid more than me I can sue for equal pay on grounds of sex. Indeed I actually did so.” When she made an equal pay claim against the Ministry of Justice over judges’ pensions under the act, she explains, “we succeeded on all grounds”.
FWS says the definition of “sex”’ in the Equality Act refers to a person’s assigned sex at birth and refuses to accept that protections for trans people as their reassigned sex are necessary.
Victoria and Stephen argue that if FWS wins, English law would create a nonsensical situation where they would be one sex under the Equality Act and another under laws about marriage, death or anything else relating to sex, according to their birth certificates. So instead of “achieving clarity about sex” as FWS claims, Victoria adds, “it does the opposite”.
“We started to see some aspects of life change for the better… Sadly, we now seem to be regressing again.”
The court’s decision risks putting trans people’s rights back decades, Stephen says. “I spent years being dismissed from jobs because of my ‘otherness’ and excluded from social events – family, public and private. I had to fight for 20 years to ensure my compulsory employment pension contributions would be passed on to my partner of more than 45 years.”
Stephen’s experiences compelled him to study law at Manchester University, determined to challenge the discrimination he and other trans people were receiving. He was involved in drafting the Gender Recognition Act 2004 and the Equality Act 2010 and has played a significant role in securing basic legal freedoms for the trans community. After those two acts came into force, he explains, “we started to see some aspects of life change for the better… Sadly, we now seem to be regressing again.”
Thanks to the generosity of supporters, Good Law Project is applying to intervene so that the experiences of Stephen, Victoria and countless other trans people won’t be sidelined. If successful, this intervention will make sure that on November 26 their voices are heard in the Supreme Court.
