We left it to the Supreme Court to decide ‘what a woman is’ – they chose wrong

The Supreme Court’s decision regarding trans women has made me ashamed of my profession – and ashamed of what our law has become, writes Good Law Project founder Jolyon Maugham KC

You can tell when something is important to lawyers because it gets its own Latin tag. One, and perhaps the most important, is audi alteram partem: that both sides should be heard.

You don’t need to be a lawyer to know it’s important. In our bones, we know it’s impossible for fairness to happen without hearing both sides of the story. Except that, in its ruling that trans women are not legally women under the Equality Act, the Supreme Court forgot.

The case focused on whether a trans woman with a gender recognition certificate (GRC) – an official certificate that you’ve transitioned – is protected against discrimination as a woman.

This is rather important if you’re trans and you have such a certificate: are you entitled to be treated as a woman?

The case was brought by For Women Scotland, an organisation that doesn’t believe trans women are women. And it was brought against the Scottish government, which isn’t trans, over the definition of “woman” in Scottish legislation mandating 50 per cent female representation on public boards.

Lots of organisations applied to be heard by the Supreme Court. These included Sex Matters, which shares For Women Scotland’s views; Scottish Lesbians – it does too; The Lesbian Project – ditto, and LGB Alliance – as before. All were permitted to make written or oral arguments before the Supreme Court, along with the Equality and Human Rights Commission, which is also hostile to trans rights in the UK, and Amnesty, which, like the Scottish Government, is not trans.

No trans organisations applied to be heard. This was not because they had no interest in the outcome, but because they knew from bitter experience what legal proceedings involve. They mean punishment beatings in the right-wing press, that the Charity Commission is likely to investigate, that their staff will face threats of violence and that it may well kill off the organisation altogether. We know this because the organisation I run, Good Law Project, has funded and supported legal actions by trans organisations in the past, and we have seen these consequences. We asked all of those we knew in Scotland whether they might intervene – and they refused.

But we did persuade the two architects of the Gender Recognition Act that created that certificate: the academic Stephen Whittle, and Victoria McCloud, who was, until she resigned because of what she experienced as a judge, the UK’s only “out” trans High Court judge. Both are trans, both with a Gender Recognition Certificate.

‘The decision to shut out from the hearing the people most closely affected by it made the decision weaker’ (PA Wire)

Three barristers worked on their intervention – two are now KCs – and they spent hundreds of hours and many tens of thousands of pounds working on it. We funded them.

But without even giving reasons, the Supreme Court flatly refused to accept their application to be heard. As a result, this appeal was left with not even one trans person giving evidence.

It then got worse. Not only did the Supreme Court listen to the legal arguments of the gender critical organisations, but they also accepted fresh evidence from them, evidence that was never tested, evidence that would have been vigorously tested except the Supreme Court refused to allow anyone trans to test it.

This was monumentally unfair to trans people, as the community most closely affected by the decision. However, it’s not just a question of unfairness. The decision to shut out from the hearing the people most closely affected by it made the decision weaker.

Let me give you one example – there are many others.

The Supreme Court says that their decision “would not be disadvantageous to or remove protection from trans people with or without a GRC.” The reason they give is that if you are perceived to be a woman, you are entitled to the protection the law gives to women.

But this reasoning only applies to a small proportion of trans women. If you are “out” as trans, you will not be entitled to that protection, and the criminal law now forces people to “out” themselves. If you do not “pass” as a woman, you are not entitled to that protection, and gender affirming healthcare is being withdrawn, so fewer and fewer trans people will pass.

Of course, there is no reason why the Supreme Court should have known any of this – after all, they are all cis. But they should have known that they didn’t know. They should have known that to deliver justice means hearing from both sides. They should have had some humility about the limits of their own knowledge.

That they chose not to is unforgivable.

The Supreme Court can kid itself all it likes about this decision not being bad for trans people. Trans people know it is the latest savage blow against a community that is already reeling.

We have criminalised trans healthcare that is orthodox in the rest of the developed world.

The result – as every trans person knows, and all those close to them – is an epidemic of suicide. Yet even that reality is denied to them. Government departments are stretching every sinew to prevent publication of suicide statistics, which would be acutely embarrassing to ministers who like to appear to care.

Several years ago, the Good Law Project commissioned a large survey from YouGov of how people with different “protected characteristics” trusted the judiciary. It showed that the lowest level of trust in the judiciary was held by trans people. Today’s decision has proven them right.

I am a King’s Counsel with an unblemished professional record, and I do not say this lightly. The Supreme Court’s decision has made me ashamed of my profession and ashamed of what our law has become.

Jolyon Maugham is a KC and the founder of the Good Law Project