She Was a Judge. Now She’s an Exile, Fighting for Trans Rights in Europe’s Courts

After resigning from the British High Court, Dr Victoria McCloud is leaving the UK – and taking its government to the European Court of Human Rights over what she calls a “regime of oppression” that’s targeting trans people. 

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Dr Victoria McCloud joins me over Zoom from her London home. Or, from her soon-to-be former London home. As we talk, I notice that the only decor behind her are spray bottles and cleaning products, those workhorsy calling cards of an immanent leave. “Practical life for trans people in the UK has become impossible,” she tells me, “[…] what we are seeing now is a regime of oppression.”

Last year, Victoria left the British High Court, where she had once been its youngest-ever appointee, after decades of service. In her statement of resignation, she pointed toward the dearth of “dignity” she was afforded as a high-profile trans professional in Britain’s current political terrain, which she felt had made her position untenable. Now, as the situation only further convulses, she is leaving the country altogether. 

Trans rights in Britain have been in a dogged retrograde for the last few years – so much so that the country has been nicknamed “TERF Island” by activists for its unique strain of anti-trans hostility. Investigative reports published by GAY45.eu have exposed the well-funded and well-connected lobbying networks that have pulled at parliamentary puppets to annihilate slowly-won gains. Novara Media has reported on the decades of anti-trans rhetoric peddled by the British press – from right-wing tabloids to nominally left-wing institutions like The Guardian – which has intentionally corroded and poisoned public perceptions. National leaders, once largely resistant to (or, at least generally asymptomatic of) this ideological virus, are now keenly joining in on the Bacchic mauling too.

This backslide reached its apogee in April of this year. Adjudicating on a long-contested, attritional case brought forward by the J.K. Rowling-funded lobby group For Women Scotland, the UK Supreme Court ruled that the term “woman,” for purposes of the 2010 Equality Act, refers only to “biological sex.” In doing so, it upended two decades of legal precedent. Since 2004, following an earlier intervention by the European Human Rights Court (EHRC), trans people in the UK have been able to obtain a gender recognition certificate (GRC) to legally amend the gender on their birth certificate. This meant that trans men could be recognised as men, and trans women as a women for all legal purposes (although, only following an intrusive, and bureaucracy-laden examination process that watchdogs already ranked among the worst in Europe).

The 2004 Gender Recognition Act, which ratified this amendment, had been an easy, largely uncontroversial piece of legislation, passing through Parliament with cross-party backing. It was also, within Britain’s legal architecture, fairly marginal. Due in significant part to the labyrinthine messiness of its gender examination process, it is estimated that only 8,500 people ever successfully endeavoured it. 8,500 people who the Supreme Court’s ruling have now left in a state of limbo, their recognised sex nebulously shapeshifting from the one to the other depending on contextual life – ironically, the very set of circumstances which groups like For Women Scotland rallied against.

Victoria’s own case is exemplary in this. Although she is a woman according to her birth certificate, passport, and other legal documents – sex, for Victoria, is “absolutely a legal category” and should be treated as such – she would now be compelled to use the men’s toilets in certain public spaces and would be subject to strip searches by male officers in accordance with new police guidance. She is, effectively, “two sexes at once,” an outcome directly contradictory to the Court’s own assertion that sex is binary and unchangeable.

The ruling’s results, meanwhile, are not only self-evidently dangerous – herding Victoria and other women into men’s spaces and bathrooms, into the male hands of an “institutionally misogynistic” UK police force – but “paradoxical… [and] absurd.” Victoria compares it, almost, to a Monty Python skit.

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In theory, the objective of the Supreme Court’s ruling was to establish a legal clarity. This is the word that Keir Starmer used in lauding it, while its synonyms – “coherence,” “logic,” “precision” – abound, rabbit-like, in statements and legal papers connected to the case.

The ruling, though, is anything but. Not only in its own muddled redefinition of sex, but also in its dubious legal footing. The Supreme Court not only denied Victoria’s filing to speak in the case – which she claims is a violation of trans peoples’ fundamental entitlement to civic representation in legal matters pertaining to their rights – but also grossly overstepped its heuristic role. It has “legislated” a new legal definition of sex, she says, and one that clearly reneges on the human-rights reforms the ECHR – whose Convention of Human Rights the UK is a signatory – had already made it introduce two decades ago. The UK has simply reverted to its previous unlawful stance; namely, one that denies trans people their human right to dignity, privacy, and legal inclusion.

The systematic identity erasure of trans people holding GRCs is perhaps the most malicious aspect of the ruling. But its repercussions reach further. Intersex people are directly affected too, Victoria notes – those who don’t fit, as a result of their biology, into the binary image of ‘biological sex’ that the Supreme Court has sought to create. There are also the estimated 200,000-500,000 trans people in the UK without GRCs, now too pushed toward a variety of fraught, potentially life-threatening situations by the ruling, while also facing a new wave of hate the ruling will inevitably animate.

Then there are the cis women, she says, who don’t present femme and who risk vigilante policing for not conforming to stereotyped femininity. In the USA, butch-presenting women have already been expelled (ironically, by male security guards) from women’s toilets by other women; Victoria calls this a “self-cannibalisation” by cis women. British MPs now worry the same will soon happen here as gender-critical figures, J.K. Rowling included, exhort followers to “photograph” people who don’t present feminine in bathrooms and to “disseminate” their images online.

This, warns Victoria, can only portend a broader encroachment on global women’s rights. To the imposition and enforcement of a “more normative regime of sex stereotypes” that feminism “moved on from decades ago.” It is no coincidence, then, that mounting transphobia – and specifically transmisogyny, which takes trans women as its “lightning rod” – is coterminous with an international resurgence of misogynistic and pronatalist politics. “A lot of people in the [anti-trans] biological purity movement,” she explains, “also talk about declining fertility. But that’s a misnomer. We’re not talking about women being infertile. We’re talking about women choosing not to have babies. By calling it infertility, they’re pathologising it – they’re saying that not having a baby is wrong.” 

She points – albeit, without herself naming names – to the likes of Miriam Cates, a former Conservative MP who has repeatedly expressed anti-trans ideas while suggesting that women should not go to university until after having children and blaming “cultural Marxism” for stagnating birth rates in the West. Cates has been out of Parliament since last year, but her ideas have morosely lingered. Bridget Phillipson, Labour’s Minister for Equality and an enthusiastically supporter of the Supreme Court ruling, recently echoed Cates when she implored young British women to have more babies. 

Watching this, Victoria says she is gravely concerned. Since leaving the Supreme Court, she has established the Trans Exile Network (TEN), an informal mutual aid group, to help trans people seeking to evacuate the UK. On behalf of the network, she is also drafting a paper to red flag what she worries are the “early stages of genocidal behaviour” by British institutions toward trans life. The Lemkin Institute for Genocide Prevention has already backed her claims, as have the United Nations. Genocide Watch were warning of worsening endemic conditions as early as 2022. “I see it as my duty,” she says, “[…] the UK is the worst in the democratic world toward trans rights.”

Despite all this though, Victoria has also found time to enjoy the warmer side of life and community since leaving Britain’s judiciary – and Britain as a whole – to live with her partner in Dublin. “I’m re-entering the trans community,” she says, “because for so long I wasn’t really a part of it, I was just focussed on my career. And I’m learning a lot of things, realising how far I got left behind.” I remember my first time meeting Victoria, at the pub in front of Central St Martin’s after a media event where she had been a special invitee. And I remember the theatrical, only quarter-faux outrage she burst into when I mentioned ‘the dolls,’ a term for the trans community that was emblazoned onto T-shirts and social media following the Supreme Court case. “We never used to say that,” she exclaimed – a sign of the times.

On our call, she also excitedly tells me that, once we wrap up, she’ll be headed to the second day of a tech conference in London. More than law, technology has always been her greatest fascination. She even has a doctoral degree in artificial intelligence.

***

As one last question, I ask Victoria what can be done on the ground to fight the Supreme Court? First, she affirms that the decision will “inevitably” collapse. It is, she states, in obvious contravention of human rights. As she curtly puts it, “they’ve put as straight back into the breach we were in before the GRA [2004 Gender Recognition Act].” However, the problem now is time. The courts in Strasbourg are glacial, slow-moving, and, although Victoria is no stranger to protracted legal warfare – she describes herself as a “Komodo dragon,” tracking her targets until they simply collapse from exhaustion – the worry is that neither her nor other trans people have years, possibly even decades, to wait.

And yet, it doesn’t have to be a waiting game. “Almost tomorrow,” Victoria says, “Bridget Phillipson could make an order and fix this if she wanted to,” referencing section twenty-three of the Gender Recognition Act, which allows the Equalities Minister to “[modify] the operation of any enactment” that affects trans people. “This is why I think more people should be concerned,” she continues, “because it shows that the Labour is choosing not to help LGBTQ+ people, that it’s no longer a liberal party.” Most people, Victoria frets, don’t know about all this though. Which is why talking about it matters. “I don’t think the majority of people in Britain are anti-trans,” she affirms, “in fact, when I tell people about what’s happening they’re outraged. But people just don’t know it’s happening. And if they do know then they’ll tell other people, and that’s how change can happen.”

So, she lays out two challenges. One – to ordinary readers: make noise about all this, tell people that rights are under threat and tell them to tell people, too. March in the streets. Because with enough pressure, we can make things change; with enough pressure, we can get Parliament to act. 

And two – to Bridget Phillipson: “fix it,” Victoria says, “You have the power, section twenty-three, so do it now. Make it clear that the Labour Party that passed the Gender Recognition Act in 2004 is still there, deep down. Make it clear that the Labour Party is still a liberal party.” 

Though, she ends with a caveat, “I don’t think it is. It has shown that it’s not.” 

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