March 28, 2024 - 1:00pm
Sex and gender are very different things. The distinction is vital to women’s rights and protections, which is why the proposed intervention of a judge in one of the most important cases ever to come before a UK court raises disturbing questions.
Victoria McCloud, who was the UK’s first transgender judge, is seeking to intervene in an appeal to the Supreme Court by a feminist organisation, For Women Scotland. The case hinges on whether a Scottish judge, Lady Haldane, was right to rule that the word “woman” includes biological males who hold a gender recognition certificate. If it is upheld, it will allow men with a GRC to demand that they are treated as women in all circumstances.
Last month McCloud, who has a GRC, announced an intention to resign from the bench in April, claiming that the decision was a result of a toxic climate towards trans people in the UK. McCloud complained that the existence of gender-critical feminism means “it has been open season on me” and “I am now political every time I choose where to pee.” This is the language of gender ideology, which dismisses out of hand the feelings of women who don’t want to share intimate spaces with biological men.
McCloud’s proposed intervention in the forthcoming case is framed by supporters as an attempt to uphold legal protections for trans women, but opponents believe it is quite the opposite. They argue that Haldane’s judgment removes women’s rights and makes the sex-based exceptions in the 2010 Equality Act unworkable.
But there is an even bigger issue here. “Trans judge resigns over fears of dragging judiciary into politics” was the headline on a legal website in February, but that is arguably what McCloud has now done. The latest edition of the Guide to Judicial Conduct recognises that holders of judicial office face “restraints on their private lives” that might not apply to everyone else. “They should not act in a way, even in their private or family life, which could reduce respect for judicial office or cast doubt on their independence, impartiality or integrity,” it states. “They should avoid situations in which risks of this kind are likely to arise.”
Situations like the present one, which gave rise to this headline in today’s Guardian: “Transgender judge seeks leave to intervene in UK court case over legal definition of ‘woman’”. The paper claims that McCloud “cannot speak directly to the media because of judicial restraints”, but it is happy to speak on the judge’s behalf. It even plays the well-worn victim card, revealing that “McCloud and her family have made provision to emigrate to an EU state where she would remain legally recognised as a woman” if the For Women Scotland appeal succeeds.
This is the second time in recent weeks that a judge has been accused of allowing personal or political views to affect their behaviour. Last month another judge, Tan Ikram, handed down lenient sentences to three women who appeared at Westminster Magistrates’ Court charged with terrorism offences.
The women were seen displaying images of paragliders, like the ones used by Hamas to carry out terrorist attacks in Israel on 7 October, at a pro-Palestinian march in London a few days later. They faced prison sentences of up to six months but Ikram let each of them off with a conditional discharge. It was then revealed that he had “liked” an Instagram post hostile to Israel, shared by a barrister who describes Israel as a “terrorist” state. Ikram later said he had liked the post by mistake.
The timing of McCloud’s intervention, as the Scottish government’s hate crime legislation comes into force next week, could hardly be more damaging. We’ve repeatedly been told we can rely on the police and judges to use common sense, but what if some of them go along with the dogma of activists? If they claim that a vitally important distinction between men and women is about nothing more than where people “choose to pee”?
The independence of the judiciary is one of our most important protections against state overreach. In the current context, where a Scottish government captured by trans activists is pushing profoundly authoritarian legislation, it is more essential than ever.
Joan Smith is a novelist and columnist. She was previously Chair of the Mayor of London’s Violence Against Women and Girls Board, and is on the advisory group for Sex Matters. Her book Unfortunately, She Was A Nymphomaniac: A New History of Rome’s Imperial Women was published in November 2024.
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SubscribeHave we reached peak trans yet ?
Who’d have thought so many movers and shakers were AGP’s ?
For an oppressed minority constantly on the verge of suicide it is rather impressive how high some of them fly in spite of it all.
I thought the shake-ables were lopped off ?
“We’ve repeatedly been told we can rely on the police and judges to use common sense…” What happens when common sense, which is grounded in reality (experience of the real world) is at odds with laws based upon fantasy? The law will win, at least in the short term, because it is backed by the police power of the state. State power is based, remember, on force and the willingness to use it.
We should always dismiss as lies claims that we don’t have to worry about a law because it won’t actually be enforced as written. Experience shows that such laws will not only be enforced, they are likely to be enforced as broadly as possible.
“We’ve repeatedly been told we can rely on the police and judges to use common sense…”
(falls off chair laughing)
Indeed. Common sense was completely absent for decades when scores of judges prosecuted hundreds of postmasters in the Horizon Post Office scandal. The public is almost innured to hearing endlessly about miscarriages of justice, though the recent Andrew Malkinson case stood out as being egregiously dreadful. However, there was simply no proof of theft in these Horizon prosecutions as the crimes didn’t actually happen. God help us all.
At least in the UK miscarriages of justice are acknowledged.
Australia never had functional law-enforcement.
Authorities’ ignorance of Australia’s crime & corruption is genuine: you cannot pretend to be THAT clueless.
People only find this out, when they find themselves hounded by police officers flashing their uniforms in broad daylight, participating in crimes they block from being reported – routinely. Because Australia’s police never had any duty of care/accountability, while always having had an unshakable monopoly on what is a crime.
Our bikers brag about their government security clearances, self-identify as drug-traffickers and advertise their whole-back tattoos spelling out how well crime pays in Australia – also how free of any risk of prosecution.
Unpunished crimes have included Geneva Convention violations in my own, forced experience since 2019 as a public servant witness of crimes punishable by 10 years in jail/worse.
It took me almost five years to summon the courage and name these acts their rightful names: war-crimes.
In a leafy Melbourne suburb of million $ homes, in the electorate of Clare O’Neil, Australia’s Minister for Cyber Security and Home Affairs (no less).
I never even dated the stalker ex-coworker evidently trading info he steals via his electoral commission IT Helpdesk Assistant job for crimes as a service: like where to find people in witness protection.
My last forced war-crime experience less than a week ago in the home I have owned since 2001. On my own, behind locked doors.
https://www.theguardian.com/law/2023/jul/27/quashing-of-andrew-malkinsons-conviction-confirms-failings-of-criminal-review-watchdog
Thank you for the link. In Victoria, Australia IBAC (2011) is meant to curb Victoria Police’s own crimes & corruption.
IBAC is so under-resourced & so powerless, they must hand over to corrupt Victoria Police over 90% of investigations about their own crimes & corruption with predictable consequences (look up Robinson Gill Lawyers/Jeremy King).
And, s194 of the IBAC Act provides criminal Victoria Police officers an impenetrable cloak of secrecy: they are free to bypass their Freedom of Information obligations via declaring all information relating to police crimes & corruption investigations as protected disclosure.
Laws that will not be enforced should not be laws. Either they are enforced, which usually infringes on rights of the citizen, or they are not enforced, which brings the entirety of the law into contempt. Choose some other forum to make moral statements.
“common sense, which is grounded in reality”
People can reach biological maturity, gain stellar qualifications without ever experiencing failure, or struggle – not even in literature.
They don’t develop insight, common sense or conscience.
See Clare O’Neil, Australia’s Minister for Cyber Security and Home Affairs (no less) – the Labor MP for my electorate in Melbourne, since 2013.
Perhaps we should congratulate the left, and in particular, the feminists, for having achieved their goal of eliminating the differences between men and women, even though they may not have predicted the erasure of womanhood itself. The long, hard “war on women” is over and victory can be declared.
Of course they have not eliminated the differences only created a fantasy, which many pretend to believe, that there are no differences.
To the identity politician one’s own biases are always right and common sense. The law, logic and fair-mindedness are merely there to help you silence your opponents.
This is deeply concerning. As an individual, if course it concerns the judge, but that’s a private matter. By making her threat public, of course she calls the independence of the judiciary into question.
A judge sits on the bench to administer the law, not to voice personal opinions.
Unfortunately there are many recorded incidences wherein a male rapist has been sent off with a flea in his ear, for what a male judge considers laddish behaviour.
Is this right? Perhaps it is.
Sure you meant to say “making his threat public” etc. Even if he has a GRC, had all the operations he is, and always will be, a man.
I absolutely agree with all you say, especially the final sentence. Unfortunately, the “personal is political” mantra, de rigeur since the 1960s, has finally poisoned the wells of the judiciary too.
No shock that this is happening in Scotland, I’m truly sad to say. The capture of the SNP by Trots and other assorted wreckers is approaching its apotheosis.
This may be paranoia, but in the case of Hamza I found myself wondering whether a Muslim who may be a closeted enemy of western civilization would not find it politically useful to encourage all the most destructive and anti-cultural tendencies in his time? So that what he secretly regards as the rotten edifice of kuffar policies may become even more rotten and eventually open to conquest? Also, how hard would it be to formulate a ‘law’ exactly like this one, only aimed at crushing criticism of Islam? And we know that there are people who want that.
But in the age of social justice activism, to be silent is to be an accessory to violence; there is no place of neutrality. So it is in academia and so it is in social media and so it is in mainstream media and so it is in popular culture (film, music, theatre, literature). And soon enough, as here, so it is in the halls of justice.
Another descriptor for this is “social justice totalitarianism”.
Joan, you have gone through great pains not to use any pronoun referring to the “trans judge”.
Allow me to ask you, is Victoria McCloud a man or a woman and what pronouns should one use to refer to said judge?
Perhaps you could have prefaced the article saying that “McCloud is a male who has a GRC and for simplicity I will refer to her as a “her” or similar wording”. After all it is difficult to read of a He-Victoria without causing confusion.
I wish the downvoters would out themselves. I thought my comment was factual so I don’t understand the silent criticism.
You’re right. A man should be referred to as ‘he’. However, I think many online authors are afraid of being sued for ‘deadnaming’ so they censor themselves by avoiding pronouns.
There’s a perfectly good pronoun available to apply to the confused — the neuter singular.
I think she used ‘their’ once?
I have checked and I don’t think she did in reference to the lovely Victoria.
Trust in judges will decline with this kind of nonsense going on.
Here’s the thing: all of this sex and gender nonsense has grown and evolved, slowly but steadily, from the ideology-based feminism of the 1960s with its insistence that there are no differences between men and women. When that argument was limited to workplace competence and the question of whether women could do the work just as well as men, it was reasonable: equal pay for equal work is an idea I fully support.
The problem is that radical feminism (a la Shulamith Firestone, Judith Butler, et alia) promoted a gradual erosion of all distinction between men and women; it therefore became sexist and disreputable to suggest that boys are naturally more interested in tools and machines than girls, or that girls are naturally more interested in dolls, dollhouses, and domestic play. Or that adult men and women might have intrinsically different talents and desires.
As time has gone on, it seems that a subgroup of feminists set out to prove that women are equal to men (and therefore not distinguishable) in every possible realm of public and private life. At that point, men would become redundant, which long been a wish for many radical feminists, i.e., that faction which holds that no genuine feminist woman would choose to have a man as her mate.
But then it’s just one step further to discover that women are redundant, because in the absence of men there is no longer any definable sex of women; men are the sexual counterpart of women, and vice versa.
That opens the gate for every person who used to be a considered a man to switch sides and become a woman, and likewise for every woman to become a man. Which is the natural goal of the transgender movement. Gender and indeed all forms of identity become as fluid as oil, and all that was solid dissolves into mist. The wonderland of postmodern posthumanism.
I think it will be up to women to resolve this situation, because the vast majority of men never really had an interest in it in the first place. As for those men who consider themselves feminists, however, they have a lot of ‘splaining to do.
‘it therefore became sexist and disreputable to suggest that boys are naturally more interested in tools and machines than girls, or that girls are naturally more interested in dolls, dollhouses, and domestic play.’
But it’s surely unnecessary to assume these stereotypes apply in all cases.
I have never been interested in dolls, dollhouses and domestic play, As I grew older I had no interest whatsoever in knitting, sewing, cooking and children. Domestic life still bores me rigid in my old age. Yet I am biologically female and never had the slightest desire to identify as male. I’m sure there are men also who’ve never fit into the male stereotype but have no desire to identify as female.
Yes, I am speaking in broad generalities. I don’t mean to imply that all men are one way and all women another. I only mean that there are real biological differences not only in anatomy and physiology but also in behaviour. And I consider that a good thing which adds to the variety of life and richness of experience. Different does not mean better or worse.
I think the purpose behind this is not really gender ID, but the even more subversive goal of eroding faith in public institutions, so much so that people begin to take matters into their own hands. This will allow power-hungry governments to conveniently ignore the concerns of the populace by simply tarring them as fascist right-wingers and thereby justifying the extreme measures they will use to subdue them.
We are already seeing a huge split in society between those who implicitly trust the government to do ‘the right thing’ and those who are watching with growing horror how a nonsensical ideology is being weaponized against normal citizens to censor and gaslight them.
“Sex and gender are very different things.” <– Insofar as they are physically distinct (and usually separated by about two feet) characteristics which are sexually dimorphic, yes.
“The distinction is vital to women’s rights and protections” <– That of the two, only the gender of a person is what is rationally at issue, yes. You borderline never know what someone’s sex is, you impute it from their apparent gender.
Infer not impute. Such an odd word!! What’s behind it? Some obscure blame game? 99 pc of the time we rightly and without fuss identify the sexual gender of a given person. When the “gender” has been manipulated to convey the impression of a different or perhaps opposite sexual gender, we usually know that too – though not invariably so if the craft work is good. When they take their p***s from their pants to pee, or make the corresponding sound when urinating in a loo, all doubts tend to be dispelled in the minds of witnesses. If surgery on the sexual and urinary organs has been performed the general view might be that the trans personage has been rendered harmless though not necessarily incapable of scooping up the prizes in a swimming pool. Aren’t injected hormones illegal in any competition?)
All told a huge edifice of pretence and crazed legal endorsements has been built up around this minority phenomenon. Scotland was wrong and like Holland it suffered from a paradoxical desire to allow stuff which was, and remains, antisocial to be practised, performed and even sold in public out of comically inverted out of puritanical libertarianism. Time to come back to earth. Anyone is entitled to describe themselves however they like but also to describe others as they know them to be. If a trans woman is a man who transition in your eyes you must have a right to say so – particularly if it’s true.
You can literally know someone’s sex regardless of how they present. Most people don’t mind going along with pretending someone is the opposite sex, but that’s another thing to forcing them to.
“You borderline never know what someone’s sex is …”. This is not true. It isn’t true at moments such as copulation or birth or breastfeeding, and it isn’t true in cases of serious sexual assault and rape.
It isn’t true 99% of the time just passing someone in the street
Quite the opposite. From early puberty, humans are markedly sexually dimorphic. Transwomen may highly desire to ‘pass’ as the opposite sex, but it is a very rare (and surgically altered) male who convinces anyone.
I do remember my brother attending the Rio Carnival in the 80s and being quite disturbed by the 6ft tall siliconed drag queens. Amusing in context, but not in the Ladies loos.
People are generally polite, and willing to humour someone else’s illusions or beliefs- up to the point that these make a real difference to their own lives. When that happens, they stop playing along.
‘You borderline never know what someone’s sex is . . . ‘ ??
What were your planetary coordinates again ??
Wow. Completely deragedly wrong. It is very easy to determine sex, and people are very very good at it. This is something that evolutionarily is bred into us. It can be disguised, but not successfully in most cases. I can always tell when some deranged male is pretending to be a female.
Another cross-dressing fantasist. Pathetic two-at.
If resistance will be limited to the grumbling of old farts under articles in UnHerd, everything will get worse and worse until the Islamists come to power and organize a total defenestration of these idiots and, worst of all, the silent majority will be happy to see a liberation in Islam, women first
The politicisation of the judiciary through their actions is going to be a serious problem going forwards.
Every day your society hits another rock bottom
It’s essential that she is not allowed to resign, as she’s mis-cast his resignation as a political act.
Ought to be fired.
Like, yesterday.
This takes trannie bullying to a new level. This deranged and deluded man should NEVER have been raised to the position that he is in. He should be disbarred.
Is this the same person who, as a judge, was responsible for what we in Australia would call a Bench Book – guidance for Judges hearing cases on how to act? Because of this intervention, people have been revictimised by having to refer to their male assailants as “she” and the Courts have operated showing favour to trans parties. McCloud therefore has intervened already in every case there is where there is a Trans party. Such partiaiity ought not to be able to stand.
Someone needs to stop this disgusting man in his tracks. He shouldn’t be allowed to be a judge he clearly has no regard for more than 50% population. If he thinks he is a woman then he shouldn’t be able to judge anything.
A small child would tell you in 2 seconds he is a man, clearly his ‘judgement’ is completely wrong.
It makes me so angry. He needs to eff off to another country to be honest and take his deluded family with him.
He doesn’t care about women, I hope one day something bad happens to him so he LEARNS about the dangers of this to women, so he feels it and realises what a selfish stupid deluded monster he is.
Makes me feel sick that this thing could affect my rights. It’s extremely hateful to women, he is the ultimate misogynist treating us like a meat suit.
“We’ve repeatedly been told we can rely on the police and judges to use common sense.” And that they are incorruptible, too. Faith in this case really is the ability to believe what you know to be false.