Judge McCloud seeks re-hearing of the Supreme Court FWS appeal

[ArabellaScott]

https://www.theguardian.com/society/2025/aug/18/transgender-judge-supreme-court-case-biological-sex

'The UK’s first transgender judge has launched a case against the UK in the European court of human rights challenging the process that led to the supreme court’s ruling on biological sex.
The retired judge Victoria McCloud, who is now a litigation strategist at W-Legal, is seeking a rehearing of the case, arguing that the supreme court undermined her article 6 rights to a fair trial when it refused to hear representation from her and did not hear evidence from any other trans individuals or groups.'

The Amnesty representative was, I believe, non-binary?

Well I would much prefer that Jolyon and his ilk pocket the spare cash of these poor kids than the likes of Gender GP, Gender Plus or the pharmacies that post from Hong Kong and Vanuatu. In the long term he’ll do less damage than the hormones.

I think their aim is also to eventually take a case to the ECHR. Is Crash Wrigley involved with the GLP? He wrote an analysis of the Supreme Court judgement that criticised it for not being consistent with trans people’s human rights under the European Convention on Human Rights. Michael Foran wrote a really interesting rebuttal where he argued that there is a wider margin of appreciation for enacting gender recognition legislation by member states when the rights of others (in this case, women) are engaged).

And I'm sure I've read that if Dr. Upton loses in the NHS Fife tribunal, he will most certainly appeal, possibly backed by the GLP. And I guess that could eventually go all the way to the ECHR. I assume they are waiting for a case to take forward.

@ItsCoolForCats
This thread is about the case you are suggesting might happen.

My concern about the ECHR is that they have form for just making shit up.

They have claimed that their member states' human rights obligations include having a gender recognition process in place. This is clearly absolute bullshit, because it would not have been envisaged by the member countries at the time the treaty was negotiated in the early 1950s.

Tellingly, they have never told their member states that they have to offer women safe and legal abortions. Clearly they think that a man has a human right to be a woman but that a woman doesn't have a human right to decide whether or not to have a baby. Either way, neither abortion rights nor gender recognition rights are actually in the treaty.

We believe the UK is now in breach of its obligations under the Human Rights Act and the European Convention of Human Rights and we plan to ask the High Court for a declaration of incompatibility.

The High court cannot overrule the Supreme Court,

Thank you for this very helpful post. I don’t think my anxiety could take it if this ruling was reversed.

As we have commentated many times before if terfs were sitting down to plot how to put someone in control to completely derail the legal side of Trans activism then they would probably have thought that a figure like Joylon was too good to be true. He truly is a great agent for Operation Let Them Speak.

I mean he has NEVER won a trans case despite having raised funds for years to do that. Losing all the time, especially if your cases are obviously awful, also is pushing the legal profession to switch more and more to pro-reality side.

Meanwhile gender critical lawyers just do stuff raising funds or sometimes run no win no fee cases, take cases to court [GLP often never gets that far] and mostly winning.

FWS are about to be beat the Scottish government for the third time.

Also couldn’t agree with this more.
Why are men’s rights so important? And why are women’s rights to not have pregnancy and birth forced upon them so not important? Bearing in mind that the stakes are so high for women not to have a baby, that they may turn to illicit unsafe abortion methods or people who promise an abortion, that could actually kill them. There isn’t a male equivalent to that. The focus of the law should be on eliminating sex inequality and sex discrimination.

The UK chose to bring in the incredibly sexist, ill-drafted GRA, which only seemed to really consider middle-aged men who had already had kids, when it could have brought in same sex marriage instead. The badly considered GRA made no provision for people with GRCs to do very normal human things like to get pregnant, or to change their minds about their gender identity. Plus all the unworkably wide secrecy aspects of the GRA.

These are all such fundamental flaws in a piece of legislation. GRA is so offensively sexist. It doesn’t respect consent on such a huge issue. The Voldemort aspects of it, meaning that it can’t be asked about or mentioned, such that any chancer can kind of suggest they might have a GRC, are very unfair on others.

It’s completely unfair and hypocritical for society to keep this knackered old GRA on at detransitioned people’s expense, just because some people believe that a new legal identity should always be provided (for £5!) to the people who do want a GRC to ‘change legal sex’.

The GRA is so full of holes that it should just be repealed. The Supreme Court decision has made things ‘much clearer for everyone which is very helpful. People can rely on the Equality Act to prevent discrimination. GRA is still actively causing problems for people.

Yes, i don’t think they’ve considered that women’s rights will have to be considered in depth that is what the SC judgment was about. Unsurprisingly, as they’ve never given any thought to what women need or want.

If it helps, even if the ECHR said that the Equality Act is incompatible with trans people's human rights, they still have no power to overturn the Supreme Court judgment. All they have is soft power. Literally the most they can do is say that the UK is in breach of its human rights obligations and needs to change the law, but they cannot force Parliament to do so.

And I think they would be on a hiding to nothing if they did that because the UK could quite rightly point out that they were effectively saying that female people cannot exist as a recognised category in law or have any sex based rights. Clearly this was not the intention of the member states when they entered into the treaty.

The UK would still be officially considered noncompliant (because there is no means of appealing an ECHR decision, which is another big problem), but I think the ECHR would suffer huge reputational damage as a result.

It's also worth noting that, despite Goodwin, several members of the ECHR do not have a legal gender recognition process.

Whether or not the ECHR would be dumb enough to take a public stand against the UK or the UK would have the balls to publicly defy the ECHR is highly political.

Bearing in mind the long timescales for reaching a judgment in the ECHR, it's difficult to predict who would be in power at the time. If Keir Starmer is still prime minister then there is a danger that he might say, "The ECHR has told us that we have to change the Equality Act" and do it. (But it would still have to get through parliament.)

If the Tories were back in power (or, God help us, Reform) I think the UK saying, "fuck you" and withdrawing from the ECHR is quite a likely possibility.

Yeah, I think taking a case to the ECHR is very high stakes (because it's terrible news for women if the unelected judges in the ECHR from which there is no possibility of appeal decide that the treaty we entered into over 70 years ago should be interpreted to mean that men's right to be women trumps female people's right to exist in law), because it's more sunlight they really don't need.

If the ECHR found against the trans activists, that would send a huge message across Europe and the world that trans women's right to swing their... [fists/dicks] ends where women's right to privacy and dignity begins. It would be a huge pendulum swing the other way. Rather than the UK being seen as out of step with the rest of the civilised world when it comes to trans rights, we would be moving to a place where countries like Australia and Canada were seen as out of step with the rest of the civilised world when it comes to women's rights.

If the ECHR found against the UK then I think there would be huge fallout. Because of course it does not say anywhere in the treaty that women cannot be allowed to exist in law or have sex based rights because this upsets trans people. And if they attempted to say that it does, the democratic deficit would be laid bare for the world to see.

My prediction is that McCloud/Lolyon will be denied permission to bring a case before the ECHR.

The High Court has the power to issue a declaratory judgment, that EA2010 (as finally interpreted by the SC) is incompatible with, say, Goodwin.

But the government can't be forced to do anything about it.

The High Court also has the power to declare that the 'sex means sex' interpretation of EA2010 can, should, and must be applied to any or every law, rule, and regulation that refers to sex. And they might very well do so, if people keep asking them the question.

They are playing with fire.

I would be so proud if we could be the first country in the world to rescind all our trans laws (bar anti-discrimination measures) for well thought-out principled reasons (yes, I know it's a pipe dream, but let me enjoy it).

Are you sure? I thought only the ECHR had the power to do that. Seems a bit above the High Court's pay grade.

What many trans rights activists on Reddit appear to think is that because “gender reassignment” is protected in the EA it somehow cancels out the ruling about sex being biological sex “which never mentioned toilets anyway” and therefore treating a man who identifies as a woman differently to a “cis woman” is direct discrimination on the grounds of gender reassignment.

Many of them aren’t the brightest, and it’s an echo chamber where no one can challenge or they get deleted or downvoted into oblivion. And no, FWR is not an echo chamber in the same way, if you say something which is inaccurate or unconvincing in a civil fashion your claim will be refuted, sometimes robustly and by multiple posters, but you won’t be deleted or banned just for going against the prevailing view.

They are being advised by Reddit legal experts (/s) to use this argument when their employer decides that they can no longer use female only spaces following SC. They seem to think the EHRC has just made up their guidance out of spite and that it bears no relation to the actual ruling.

By the way, for anyone who is interested, I just had quite a lengthy chat with ChatGPT about this subject, which highlights the limitations and dangers of ChatGPT.

I started off by asking whether any countries which are members of the ECHR do not have a formal gender recognition process. (To check whether everyone has complied with Goodwin.) It replied that not all of them do, and provided a list of countries which do not, including the UK.

So then I pointed out that the UK does have a formal gender recognition process, and it said, "Good spot, I should have clarified that the UK has a formal gender recognition process but it is contested by trans rights groups which do not believe that it is sufficient, particularly because it requires a medical diagnosis rather than a simple declaration.

I then said that it was talking about self ID, not any kind of gender recognition process, and that many of the countries it did not list also do not have self ID. It basically admitted that I was right and it was wrong, and then blamed its sources which included the ILGA-Europe rainbow map. I said this was based on the opinions of activists and lacks any kind of legal, factual or democratic legitimacy.

Good luck to any employer who decides to follow the advice of Reddit rather than the EHRC.

They would be applying existing jurisprudence from a higher court, to a set of agreed facts. Courts do this all the time. But no, I'm not sure.

The thing is that there is (in my opinion, controversial) jurisprudence that says that member countries are required to have a gender recognition process. (I believe this is wrong, and a clear example of overreach by the ECHR, but the jurisprudence exists.)

The Equality Act isn't incompatible with Goodwin because the UK still has a gender recognition process. Men can still be legally recognised as women, and they don't even need to get their penises removed in order to do so. The Supreme Court has merely confirmed that male women are a special subcategory of women who should not be allowed in single sex spaces for members of the female sex, because this has an impact on the safety and privacy of female women. Trans women are legally women and retain the right to marry as women, die as women, claim their pensions as women and sit on the toilet contemplating their shiny new birth certificates, provided that toilet is not a female only toilet.

As wrong as I think the ECHR were to impose a gender recognition process on its member states, I am not aware of any ECHR jurisprudence dealing specifically with single sex spaces or what happens when there is a conflict between trans women's needs and women's needs. There is, however, a fuck load of jurisprudence around which rights are absolute (such as the right to life) and which rights are qualified rights which can be limited to the extent that they interfere with the rights or safety of other people (such as the right to a private and family life and the right to freedom of expression).

The principle is that your right to swing your fist ends where my nose begins, and ECHR jurisprudence is pretty consistent in applying that principle. I think the Supreme Court judgment is very consistent with that principle as well.

So in all honesty I do not see the High Court wanting to express an opinion that the Equality Act is incompatible with the ECHR. The justice system is extremely hierarchical, high court judges might want to be Supreme Court judges one day, and they have great respect for their elders. So, at best, the case goes to the High Court and the judge applies the above principle and finds that the Equality Act is not incompatible with the ECHR, but grants leave to appeal to the Court of Appeal, which does the same thing and grants leave to appeal to the Supreme Court, and the Supreme Court says, "No, we don't think the Equality Act is incompatible with the ECHR, and if we did we might have mentioned that in the For Women Scotland case" and at that point all domestic remedies are exhausted and McCloud/Lolyon/whoever can apply to take their case to the ECHR.

In my opinion going down this route would be an absolute disaster for the trans rights lobby worldwide, and potentially for the credibility and long-term survival of the ECHR, and they would be better off lobbying the Labour government to change the Equality Act, which would be much quicker and have a higher (but still not very high) chance of success.

don't encourage them, MissScarlet!

TBH I can't see either a Labour or a Tory government changing the EA, it would be electoral suicide when a clear majority of the country agrees with women and furthermore is sick to the back teeth of the subject.

Reform's another kettle of fish, alas.

The high court cannot contradict the Supreme Court. And if it tried it would have it's arse handed to it on a plate.

The closest you can get is an individual judge speaking "as a subject...".

I don't think they would technically be contradicting the Supreme Court, because the Supreme Court didn't rule on whether it thought the Equality Act is compatible with the ECHR.

But in reality, when you have a Supreme Court judgment which concludes that female people exist and have sex based rights which are not undermined by some male people having a gender recognition certificate, and which does not say "and in our opinion this is incompatible with our ECHR obligations and maybe Parliament might want to look at this" (but on the contrary appears to wholeheartedly agree with the principle, a lower court purporting to make a declaration of incompatibility would be seen as contradicting the Supreme Court. In my opinion, even if you had a very pro trans High Court judge who really wanted to make a declaration of incompatibility, it would be career suicide to actually do it. So the response would most likely be, "Hmm, no, I don't think so, but this is a bit above my pay grade, so I'll grant you leave to appeal and pass the buck to the Court of Appeal."

Note the European Court of Human Rights has power over 46 countries including Hungry, Poland, Azerbaijan, Turkey. Yet TAs when talking about it seem to think it is magic and winning there will change eveything. Orban to note one leader just doesn't care.

Even if you win it doesn't mean anything. You will need political power to enforce it in your own country. The TA lobby was previously really good at sneaking that stuff in. However people are now getting wise to what is happening.

Self ID is a way for nazis or any other evil men to intimidate women.

Will any major party in the UK go to a big election saying they want to bring in gender self ID into the Uk? After what has happened?

Will the SNP run on that platform in May 2026? Will Scottish and Welsh Labour?

I mean, Scotland tried and now Nicola Sturgeon's political career is over and her memoirs are getting roasted by JK Rowling in Twitter.

@MissScarletInTheBallroom

You had me at absolute disaster 😁

I still don't think it's impossible that someone would try it, because the ruling has had the effect of virtually negating the GRA by reducing it to a powerless piece of paper, which the court more or less acknowledged.

But there's still a fight to be had between Article 8 and the practical application of sex-based rights, which maybe only the ECHR could opine on.

This is what happens when you pass laws based on impossible things 😡