The Supreme Court ignored trans voices. I’m ashamed of what our law has become

You can tell whether a thing is important to lawyers because it gets its own Latin tag. One of them – perhaps the most important – is audi alteram partem, that both sides should be heard.

You don’t actually need to be a lawyer to know it’s important. In our bones we all know it’s impossible for fairness to happen without hearing both sides of the story.

Except that the Supreme Court forgot. The For Women Scotland case was about whether a trans woman with a gender recognition certificate – a kind of official certificate that you’ve transitioned – is protected against discrimination as a woman.

The case was brought by an organisation that doesn’t believe trans women are women. And it was brought against the Scottish government which isn’t trans.

Lots of organisations applied to be heard by the Supreme Court. And it agreed to hear from them – Sex Matters, which shares For Women Scotland’s views. Scottish Lesbians – it does too. The Lesbian Project – ditto. LGB Alliance – the same.

All were permitted to make written or oral arguments before the Supreme Court. So was the Equality and Human Rights Commission – also hostile to trans rights in the UK. And Amnesty – which is like the Scottish government, not trans.

No trans organisations applied to intervene. There’s a reason for that. It’s because they know from bitter experience what legal proceedings mean for them. They mean punishment beatings in the press, that the Charity Commission is likely to investigate, that their staff will face threats of violence and that it may well kill the organisation.

We know this because the organisation I run, Good Law Project, has funded and supported their legal actions in the past and we have seen the consequences. We asked again all of those we knew in Scotland – and they refused. But we did persuade the two architects of the Gender Recognition Act that created that certificate to intervene: an academic, Stephen Whittle, and until she resigned because of what she experienced as a judge, our only “out” trans High Court judge, Victoria McCloud. Both trans, both with a gender recognition certificate.

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. And they were left with not even one trans person before them.

And then it got worse. They didn’t just listen to the legal arguments of those organisations. 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, the community most closely affected by the decision, but it’s not just the unfairness. The decision to shut out from the hearing the people most closely affected made the decision weaker.

Let me give you one example – there are many others. The Supreme Court says – and I quote – that their decision “would not be disadvantageous to or remove protection from trans people with or without a GRC”. And 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. Institutions – like the EHRC – that are supposed to protect trans people routinely attack them. Even newspapers which pretend to be progressive – like the Observer – now pointedly celebrate their misgendering of trans people.

The result – as every trans person knows – is an epidemic of suicide. And even that reality is denied to them – government departments are stretching every sinew to prevent publication of suicide statistics which are acutely embarrassing to ministers who like to pretend to care.

Several years ago 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 and I have 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. But we won’t stop fighting.