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 has been Chair of the Mayor of London’s Violence Against Women and Girls Board since 2013. Her book Homegrown: How Domestic Violence Turns Men Into Terrorists was published in 2019.