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Feminism: Sex and gender discussions

Go Fund Me addiction part 2

556 replies

SophoclesTheFox · 19/01/2018 19:44

The conversation is far from over on this...

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DonkeySkin · 23/01/2018 18:31

Thank you for that most informative (if depressing) post, Sakura.

So it may be the case that a court could rule that the objective meaning of sex was effectively extinguished in law with the GRA2004, when the government created the means to falsify information on birth certificates.

I have a question that puzzles me about this analysis (which also cropped up when a US court ruled that 'gender identity' is interchangeable with sex WRT Title IX) and that is that even if you accept the legal argument that (fictionalised) birth certificates determine sex, or that self-declaration determines sex, you are still left with the underlying, unresolved question of defining 'sex' itself. It seems that any such ruling, while giving the appearance of redefining sex, does no such thing - it actually obliterates sex as a meaningful concept.

It extinguishes the basis on which the very meaning of sex (having female or male reproductive biology) rests, while not actually substituting a coherent definition in its place - thus you have a shell of a legal category with no meaning, and which is not fit for purpose for the reasons that we have sex as a legal category in the first place, e.g., segregation in areas where public nudity would be expected, identifying sex discrimination, etc.

This same absurdity arises WRT to allowing people to 'self-declare' their sex on their passports and any other identity document: identifying characteristics on such documents are only there because they record objective facts about a person that help to identify him or her. If 'sex' is truly (and legally!) a subjective 'feeling' that can only be determined by the individual, then it does not belong on identity documents at all.

By way of analogy, if the government decided to allow people to alter their date of birth on their birth certificates, and to self-declare their age on passports, then D.O.B. would become useless as an identifier; and if the courts ratified this new, non-biologically based concept of 'age', and accepted that it was a matter of self-declaration, then the legal category of age would also no longer be fit for purpose for the reasons that we recognise it in law, such as age of consent laws, pensions etc.

I wonder if lawyers could get any traction from pointing out that sex itself needs to be objectively defined, if we are to recognise it as a legal category at all.

Fortheloveofscience · 23/01/2018 18:01

Haru - whoa. What an outstanding post. Thank you for explaining all that.

HaruNoSakura · 23/01/2018 17:32

Datun

Legally? Difficult to say. There's next to no case law to work with on this so trying to work out what's considered legal or not by the courts, which is why you can end up with so much conflicting advice coming from different legal experts. Essentially, what they are doing is trying to work out which way a court will rule based on already established constitutional principles that the courts use to interpret legislation, a rough handful of which are:

• What isn't forbidden is allowed - one of the fundamental underpinning constitutional principles guiding all law and how it is to be interpreted in England & Wales (E&W)

• Intent - What is the law intended to do? First preference tends to be given to any intent worded in the statute, followed by intent expressed by the Government of the day and/or Parliament & Committee that passed the statute, followed by guidelines issued by any Government as to how the law is to be interpreted.

• the Golden Rule - the act of interpreting legislation by not applying the literal meaning of the words laid down in statute where applying a literal interpretation would lead to '...any manifest absurdity or repugnance...', or '... obnoxious to principles of public policy', or where the wording the statute itself is ambiguous or it's literal interpretation would be absurd.

• Constitution and rights - we've got about 900 years of constitutional law to draw upon and the reason why society and the law isn't riddled with competing rights is because courts tend to actively rule in ways to avoid there being a conflict in rights.

• Lessons 2 and 3 when you first start being trained in Law, or study Law - Lesson 3 - the Law is not about Right & Wrong. Lesson 2 - the Law is not about Justice, or getting justice. Ideally, the Law is there to ensure the order and smooth working of society; more pessimistically it's a tool to ensure that those in power stay in power by attempting to enforce an ordered society. As a country we're an example of the former, places like Saudi Arabia or Uzbekistan are examples of the latter.

Now I'll try and keep this next bit as short as possible, so it will skip stuff, but the alternative is a truly massive wall of text, and it could still be that, so I apologise.

I'll cover the big elephant in the room first. Sex. How is somebody's sex defined in law. In terms of statute, there isn't really any big overarching statute that defines this is woman, this is man because there didn't need to be until very recently. Used to be the courts just went off of what was based on whatever government issued ID you had, which in turn would, somewhere along the line, be based on your birth certificate. Now, Government has issued directives and guidelines to the government departments responsible for issuing ID allowing somebody to have ID issued in one gender, whilst their BMD (birth, marriage, death certificates) have them listed as another. Whether you agree with the policy or not, it's a legal reality. So how will the courts rule on what determines a person's sex? One side will argue that birth certificates are the best determinator. The other side will argue that this interpretation and application of law goes against the aggregate wording and intent of the GRA2004, the wording and intent of EA2010 with special notice being given to how the intent of EA2010 alters the intent of GRA2004, and that this change of intent is reinforced by the issued guidelines to HM Passport Office et al; and that self-identification of sex is not forbidden in law, so therefore to avoid a ruling that is obnoxious to principles of public policy as laid out by successive Governments the Court should determine that a person's sex is the sex that they declare themselves to be, as long it is reasonable and not forbidden by law. Really difficult to see how that would end up. It's a coin toss to be honest, and I doubt that would see a court make a ruling so sweeping that it incorporates this much below the level of the Supreme Court.

Then there's the argument about how gender and sex are different things. Legally they aren't unless otherwise specified in a specific piece of legislation. The courts will recognise that generally the words are used interchangeably, both on a casual level of conversation, and within statutory legislation (GRA2004 s9.ss1 as one example).

Could a party allow a selection process that discriminates in favour of more than one protected characteristic? Theoretically, yes. It's not forbidden anywhere in EA2010 s104 so the first point on the bullet list would apply, but how would it apply if one of the characteristics is sex? Take a hypothetical Women's Party that has two selection processes: one selection process for all women, one selection process for BaME women. Would that second list be legal? Is it legal to incorporate two protected characteristics into a selection process (almost certainly yes), does the fact that the selection process incorporate the protected characteristic of sex mean that the selection process is covered by EQ2010 s104.ss7 thereby meaning that although the selection process discriminates in favour of BaME Women the overarching consideration is that the discrimination is based first on sex, and secondary consideration is then given to race (I'd lean towards the courts ruling yes, given the intent of the law), and if not, does the fact that the party offers a selection process separate from the BaME Women's selection process fill the legal requirement of EQ2010 s104.ss6 even though that separate selection process itself is only legal under EQ2010 s104 as a whole (perhaps).

So, to finally answer your question. When it comes down to an actual court decision, and I need to emphasise that, a court decision not a decision of another body, would a court rule that a woman who is eligible to be part of a sex-selective selection arrangement be discriminated against if such an arrangement included trans women for consideration in that selection arrangement. I don't know. Experience tells me that in cases exploring areas of law that haven't really been explored courts in the first instance really like to make their rulings as narrow as possible, so if I went with my gut I feel that that the courts will kick this decision back to whichever political party that's being sued, stating that it's up to the political party to determine who meets the eligibility requirements for a specific selection process, provided those requirements are reasonable in law. It doesn't look like a narrow decision on the surface, but it really is. With that decision the courts will have managed to avoid defining in law how you define somebody's gender since the new Government guidelines have come out, they'll have avoided producing a ruling that might have created competing rights, and they've avoided a ruling on the legality of self-id of gender. Otherwise, could a political party create a selection process that discriminates in favour for those who meet the qualifying conditions of the protected characteristic of gender reassignment? Certainly, yes.

BelligerentGardenPixies · 23/01/2018 16:01

Making sense is so 2014, get with the program Vicxy.

LangCleg · 23/01/2018 15:59

Sorry, more rant required!

I mean, why can't Dawn Butler and the rest of the idiots in Labour just say, "We think all TW should be eligible for AWS, regardless of GRC status, but the law doesn't currently support this. We'll put it in our manifesto to change it." - if that's what they think?

I'm raging almost as much at the sheer stupidity as I am at the fact they're willing to throw women under the bus.

Vicxy · 23/01/2018 15:57

Seems whoever it was deleted their reply to me. or blocked me after posting it

Here is a very similar one though

On a convo about what the TRAs did wrong with the spreadsheet, ie. breaking the law

In the absence of evidence of any harm (in comparison to the use of trans people's names as aliases for donors to the gofundme, for example), it feels like this is sensationalising what is really just a counter-movement to your campaign.

Yes, there is evidence of using trans peoples names in gofundme donations actually harming them. No recognition that those names are not trademarked to transpeople in the first place

LangCleg · 23/01/2018 15:56

Although apparently Twitter is saying that they have postponed their statement so they can decide what the term woman means.

If nothing else, this is showing up everyone in any degree of authority in the Labour Party as seriously lacking the competence to govern.

AWS are not, and have never been, anything to do with a definition of woman. They are about the definition of LEGAL SEX. People who are legally of the female SEX are human females (call them women if you like) and human males in possession of a GRC (who have been granted the legal fiction that they are human females).

If I can understand this, why can't they? How can Dawn Butler be Shadow Minister for Equalities when she doesn't even have the most basic grasp of the primary legislation in her brief?

I'm Labour through and through. But, I'm telling you, this degree of utter stupidity and incompetence is staggering to me. Regardless of anybody's position on what SHOULD happen vis a vis trans issues, senior politicians should at least know the friggin' law.

Vicxy · 23/01/2018 15:53

I was actually accused of purposely making the DPA breach out to be worse than it is yesterday on twitter by a TRA (which was a surprise, I thought they all had me blocked)

Apparently they did nothing wrong at all. And I was simply annoyed by it as it showed up how illegal the gofundme campaign is?! Oh, and that Labour members being ousted is totally irrelevant and its petty to complain about it, where the likes of deadnaming on the campaign cause severe lifelong consequences Grin

They don't even attempt to be coherent and make any sense

Vicxy · 23/01/2018 15:51

Vicxy, they've probably been taking legal advice from the same TRAs who keep stating that collating public information doesn't break the DPA...!
Yeah probably. Who needs to actually check facts and the law when you can rely on violence, blackmail and emotional propaganda Grin

LangCleg · 23/01/2018 15:49

So Parliamentary candidate wouldn't cover women's officer? Or any of the posts they advertised as being for self identified women?

No, it wouldn't. As HaruNoSakura has kindly expanded upon.

BeyondWW · 23/01/2018 15:48

Vicxy, they've probably been taking legal advice from the same TRAs who keep stating that collating public information doesn't break the DPA...!

Datun · 23/01/2018 15:47

Labour Party meeting ends in failure: we don't know what a woman is!

OMG. Where is the Daily Mail when you need it!

That would be the headline to end all headlines.

nauticant · 23/01/2018 15:27

It could be a gift to a cheeky newspaper article:

Labour Party meeting ends in failure: we don't know what a woman is!

Vicxy · 23/01/2018 15:21

"The long and short of it is that they want to allow self-ID for AWS but their lawyers are telling them they can't legally do it. My guess is they are now desperately looking for a loophole to allow self-ID to go ahead."

One would think they would have consulted lawyers on the whole thing before now? Seems a bit late to be pulling out of the statement, hours before its due

DonkeySkin · 23/01/2018 15:07

Although apparently Twitter is saying that they have postponed their statement so they can decide what the term woman means.

That's really interesting. I have long thought that the key to winning this debate is to force trans activists and their unthinking allies to define terms. Nothing exposes the incoherence of trans ideology as simply and effectively as asking trans activists to define 'woman', 'man', girl and 'boy' (and for that matter, 'sex' and 'gender'). Which they manifestly can't do, without resorting to sex-role stereotypes or circular definitions.

I suspect that whatever definition of 'woman' the Labour Party comes up with will fall into the latter camp ('A self-defining woman is a person who self-defines as a woman'), but it's good that they are being forced to tackle this anyway. IMO when it comes down to it, feminists are going to have to formally challenge government organisations and major institutions across the world to define 'woman' in an objective way, and we may eventually have to take this question to the courts too. But in the meantime, it's good to simply point out the need for clear definitions whenever we get the opportunity, as it forces people to grapple with the (non)logic of trans ideology.

BeyondWW · 23/01/2018 15:04

"The long and short of it is that they want to allow self-ID for AWS but their lawyers are telling them they can't legally do it. My guess is they are now desperately looking for a loophole to allow self-ID to go ahead."

That's my interpretation too, notdavid

Datun · 23/01/2018 15:00

HaruNoSakura

So a self identified woman (no GRC), would be excluded on the basis that they don't meet the criteria of women, but they would have to be able to be selected on a different basis, i.e. gender reassignment?

Would that mean a different list ?

nauticant · 23/01/2018 14:59

Which has me even more confused, if all women shortlists cannot be upheld unless it's for a Parliamentary candidate?

Assuming the statement is correct, I suppose the Labour Party didn't want to be put into the position of having to confirm that self-ID won't get someone onto an AWS for a "relevant election". I think they will try to distance themselves as much as possible for having any established position at all, except a vague trans-friendly one.

NotDavidTennant · 23/01/2018 14:54

Which has me even more confused, if all women shortlists cannot be upheld unless it's for a Parliamentary candidate?

The long and short of it is that they want to allow self-ID for AWS but their lawyers are telling them they can't legally do it. My guess is they are now desperately looking for a loophole to allow self-ID to go ahead.

SpartacusReality · 23/01/2018 14:53

Oh I hope labour are able to decide what the term woman means very soon. I really want to find out whether I am a man or a woman or perhaps something else, I mean really the possibilities are endless.

HaruNoSakura · 23/01/2018 14:53

So, I've noticed there's a little bit of a misconception going on about what's legal and not legal regarding the selection of candidates to stand in elections.

Just to help clear things up:

  • (S)ection 104 of Equality Act 2010 (EA2010) allows political parties to draw up short-lists that discriminate in favour of any (including one or more) of the protected characteristics contained in EA2010 (the protected characteristics are found in s5 - s12 of the EA2010), provided that is not the only selection arrangements that the party employs.

e.g. The entirely fictional Disabled Persons Party is allowed to draw up a selection process that short-lists candidates for selection who are disabled, but only if they also allow separate selection arrangements that allows people who are not disabled to be placed on a list for consideration for selection.

*The only exception allowed to the above are discriminatory selection arrangements made in regards to sex. A party that provides a selection arrangement that discriminates in favour of sex does not have to provide any other arrangements for a member of the party to be selected if they don't meet the qualifying conditions of an All Women's short-list or a theoretical All Men's short-list, but may provide alternative selection arrangements if they wish.

  • EQ2010 s104 applies to all candidate selections processes for (ss8):

(a) Parliamentary Elections;
(b) elections to the European Parliament;
(c) elections to the Scottish Parliament;
(d) elections to the National Assembly for Wales;
(e) local government elections within the meaning of section 191, 203 or 204 of the Representation of the People Act 1983 (excluding elections for the Mayor of London).

Hope this helps

ChemistryGeek · 23/01/2018 14:53

This reply has been deleted

Message withdrawn at poster's request.

Datun · 23/01/2018 14:46

Apparently the NEC have pulled out of making a statement, on the advice of lawyers.

mobile.twitter.com/mayday4women/status/955799524521529344

Which has me even more confused, if all women shortlists cannot be upheld unless it's for a Parliamentary candidate?

Maybe public opinion has something to do with it.

Datun · 23/01/2018 14:29

... because if so, what a previous poster said about labour being able to make up their own rules, makes sense. In terms of all women shortlist only being exempt for Parliamentary candidates, not for anything else.

Although apparently Twitter is saying that they have postponed their statement so they can decide what the term woman means.

If nothing else, I fervently hope that the media gets hold of this.

patrickharviesorganicmuesli · 23/01/2018 14:29

I agree Shoes. I think we are fighting a losing battle on this and it will go through. We just have to provide a consistent clear voice of opposition throughout the mess that will follow.