Jess O’Thomson: Trans people don’t trust judges – and they’re right

I don’t always trust the judiciary. And I’m not the only one. A survey commissioned by Good Law Project has revealed that only 31% of trans people trust judges and the legal system – a new low from the 43% of trans respondents who said they didn’t trust judges in a survey carried out in 2022.

And they’re right. As someone working in law, it’s heresy to say this, and it might even kill my chances of a career. There are very few chambers who would want to offer pupillage to someone who has said in public that our legal system is transphobic. But as a trans person, and someone fighting for the rights of my community, I refuse to remain silent. To me it just seems obvious: a heavily prejudiced society produces prejudiced institutions.

Look at our judges. Our judiciary is predominantly composed of society’s elite – the rich, white, male, and privately-educated. Judges are mostly straight and cis, or at least they’re not out as anything else. They’re non-disabled, and Christian. Of course, judges are supposed to put to one side these facts of their lives, and simply focus on the decision before them. But, as decades of research has shown, the possibilities we can even conceive of are deeply affected by our lived experiences. 

Although we never say it out loud, this is the reason why those of us working in law talk frequently about the judge assigned to a particular case, what that means for the chances of success, and how it might affect the way a case is presented. Some colleagues might not like me to say it, but it happens all the time. Judges do not, in fact, wear blindfolds – there is no such thing as a neutral arbiter. We are all shaped by the lives we have led, consciously or not.

The composition of the judiciary makes it even more dangerous when certain voices are denied a hearing. When the campaign group For Women Scotland tried to tear up the Equality Act, not a single trans voice was heard at the Supreme Court, despite the potentially massive ramifications of the decision on our day-to-day lives. Permission was refused to at least two trans interveners, while four “gender critical” campaigning organisations, on top of the claimant, were able to make submissions. Is it any surprise that this judgment, as highlighted by the current European Commissioner for Human Rights, gave no serious attention to its potential impact on trans people’s human rights? Perhaps this is because no trans people were there before the Supreme Court to remind them that we, too, are human.

Our system is also beset with structural barriers which stop trans people from obtaining a fair hearing. I know personally that trans people are often terrified to go to court because of the cost. Not just financial costs, although these must not be understated. Trans people lack the billionaire backers of “gender critical” campaigners, and law is very expensive. As the 19th-century Irish judge James Mathew said, “in England, justice is open to all – like the Ritz Hotel”.

But trans people face other costs: the inevitable prospect of a thorough monstering from the nation’s press. Ask any trans person who has suffered outrageous discrimination why they don’t want to sue, and they’ll say that they don’t want to be degraded on the front page of the Daily Mail. At Good Law Project, there are lots of cases we do not talk about publicly in order to protect trans claimants from severe harassment. This isn’t something many people have to think about, and it presents a stark barrier to accessing justice. Such public bullying utterly undermines the rule of law.

Perhaps the largest barrier, though, is simply what is considered political, and what is not. Judges are expected not to take public positions on controversial issues, and are usually selected from barristers who have never put their heads above the parapet. The belief is that judges should not rule on a matter where they have professed a view in public. But what is considered controversial is itself a highly politicised question. It was once an extreme and controversial position to believe that slavery ought to be abolished, or that women should have the vote. By promoting to the judiciary only those who do not rock the boat, the profession excludes those who speak out for the most marginalised. It rejects those who suggest that vigorously upholding the status quo of a prejudiced society is not the same thing as objectivity or neutrality. So trans people are right to expect that the judiciary will enforce the same exclusionary norms which we have seen proliferate in recent years. That’s what the system is designed to do.

To be human is to err. And judges are human. But just as a tree falls the way it leans, so do judges tend to err in the direction of embedded norms and prejudices. We must be careful then, of how we lean. And we must be brave enough to rigorously challenge those structures which encourage us, as a profession, to lean a particular way.