I don’t think any lawyer would have expected that outcome,” says Britain’s first trans judge about the Supreme Court ruling that a woman is defined by biological sex, rather than gender.
It means trans women – including those with a gender recognition certificate (GCR) – can be excluded from single-sex spaces for women, such as changing rooms and medical services.
“I wasn’t expecting the trans community to lose,” admits Dr Victoria McCloud, who was publicly promoted as a symbol of the modern judiciary’s diversity.
April’s bombshell ruling leaves Britain “not much better than countries that criminalise trans people”, she says.
Dr McCloud believes her rights as one of the 8,000 people to have legally changed the sex on their birth certificate have been violated under Article Six of the Universal Declaration of Human Rights. “It literally changed my legal sex for discrimination purposes, overnight,” she says.
The ruling states sex is binary “but it has actually created a situation where I am two sexes at once, which is a bit peculiar … for the purposes of the Equality Act, I am male, but for the purposes of everything else I’m female, so if I have to tick a box on a form, I don’t know what box to tick.”
It is for these reasons that, along with a team, she plans to take the UK government to the European Court of Human Rights (ECHR).
It is not a decision taken lightly, as she expects the ECHR could take six years just to decide the case and, even if she is successful, change would not come automatically. “If you win, all you get is a declaration that the country’s breached your human rights.”
The Supreme Court ruling was seen as a victory by the gender critical side; it was campaign group For Women Scotland that brought the case after first challenging the definition of a woman back in 2022. For the trans community and its allies, it is seen as a huge rollback in rights, an outcome that Dr McCloud hoped to avoid.
She notes that there were no trans voices heard in the case, even though she relinquished her role as a judge in order to apply last year to intervene in the case (but wasn’t allowed to, and wasn’t given a reason why). “I think it becomes embarrassing to law, to have a situation where essentially the people who are the most affected in human rights terms don’t actually have any voice at any stage.”
Now living in Ireland – which she describes as a “much safer place” where she can “go down the pub and no one cares what loo I go to” – she says hearing the Supreme Court ruling was like “watching a car crash from a distance”.
“My own country has left me as much as I’ve left my own country. The distance enables you to cushion yourself from a shock, whereas I think a lot of people in the UK are still bewildered and numb from the shock. I’m in an interesting position in that I’m sort of leading this [campaign] and yet I’m in exile.”
To Dr McCloud, the dispersal of trans people means “we are just quietly disappearing”. It’s in the physical sense, as trans people are leaving the UK, but also metaphorically as trans rights are being erased at pace both in the UK, the US and around the world.
Returning to London for a visit feels like a “special mission”, she says, because she feels unable to use toilets in the airport and instead has to reach where she is staying. “It now does feel palpably different as soon as you hit the ground [in the UK].”
To help other trans people, especially those who do not want to be outed, Dr McCloud has created the Trans Exile Network (TEN), which can be joined by request through her LinkedIn page.
“It’s a group of trans, non-binary and intersex people (along with their families) who want to get out,” she explains. “It’s a private group for sharing tips from those who’ve done it and have the experience of what you need to do.” She also hopes to crowdfund to help those who will financially struggle to move. “I don’t want anyone to be left behind through a lack of means.”
For those in Britain, things could worsen further for trans people “as long as Keir Starmer, Wes Streeting and Bridget Phillips are in charge”, she fears.
“I had 25 years, whatever it’s been, of a perfectly ordinary, very nice life,” she says, with younger people having a bleaker prospect. And since her legal challenge could take a decade, her commitment to it is less about herself and her peers, “it’s really for people who are the next generation instead”.
