GRC changes dropped?

@KatySun

Yes it’s a difference of emphasis. Scotland can pass laws within its devolution settlement powers.

But it cannot pass laws which have the effect of binding the UK. It’s not up to Westminster to say no. It just won’t be legally valid.

Scotland has lots of laws which don’t extend to the rest of the UK. If they want those effects that has to be agreed with Westminster unless they are literally so tiny as to be consequential.

This is not one of those things.

Thanks lamahaha I'll try that

I cancelled my Times subscription because it was too expensive. But if its paying for them to shine a light on this nonsense, I will start it up again. Well done The Times.

I was going to cancel after a trial subscription but the lady on the phone asked me for my reason and I said I couldn't afford it. She then offered me a reduced price which I accepted. So I'm still a subscriber, but I don't pay the full price. Try it!

It appears that there is no obligation on a European state to have a process for people to change their legally recognised sex

Right. That makes a grim kind of sense. Why am I no longer surprised that even a government presenting fundamental legal change proposals for public comment, aren’t even presenting the full accurate representation of legal and political facts to us?

(There’s also the bit in their impact assessment where they say there’s no evidence that Male people in women’s spaces are a threat or something - I will dig it out later. Shocking.) I haven’t read the full consultation paper yet.

Thank you very much Crone for taking the time to dig through these cases, that’s a really key point you’ve clarified for me. I’ll be pointing out that claims to human rights necessity are being made which could now be handled in a completely different way than allowing this GRA legal fiction. It shows the extreme politicisation inside captured governments and the sleight of hand that is being used here to lobby and compel.. If we all point it out in our responses hopefully they can’t just gloss over it. It would be feasible to repeal the GRA then provided the wrongs of Goodwin have been righted.

ChattyLion I'm not a lawyer, but from reading some of the ECHR judgements, it appears that the court ruling is binding on the country which has been taken to the European Court, but not necessarily on other countries.

So the Goodwin v UK ruling was binding on the UK, to find a way in which a transsexual male could marry his male partner. This could have been solved by legislation allowing same sex marriage. There was another element about not being 'outed' at work as the same person who had previously worked for the same company as a man due to their NI number being the same. Again, another solution could have been found to this without the need to falsify the birth record.

This is from the most recent ruling I could find on gender recognition in the ECHR.

We note that it appears clearly from the factual findings made by the Court in the above-mentioned case of Hämäläinen v. Finland that there is no consensus among the European States on the question whether there is a right to have a new sex legally recognised and which conditions have to be fulfilled for such recognition.

It appears that there is no obligation on a European state to have a process for people to change their legally recognised sex.

So what's meant to happen when a self IDd Scottish teenager moves to England? Or anywhere else for that matter.

Thank you oldcrone that makes sense.
What about Scottish self ID’d people - I assume their new birth certificate will have to be recognised in England just like a Scottish 16 yr old’s marriage certificate is?

Once they have all their documents listed as the opposite sex & people aren’t supposed to ask for a GRC (assuming a Scottish GRC will look different) how exactly will they be stopped?

All documents can be changed without a GRC apart from the birth certificate, although to change the sex marker on a passport requires (I think) a letter from a doctor if the person doesn't have a GRC, so is not completely self-ID.

In situations where proof of legally recognised sex is required (like in prisons), the sex will be that shown on the person's birth certificate. Unless there is some agreement with the UK government about changing the sex marker on a birth certificate issued outside Scotland using a Scottish GRC, then people born outside Scotland won't be able to obtain a birth certificate with their changed sex, and to change their passport will still require a doctor's letter.

I’m not sure Crone. I have to say with the authoritarian politicisation and flights of fancy presented as fact by the lobby and various governments around all this, it has made me a bit cynical..if something is a ECHR ‘must’ then you would think it could be easily pointed to. Maybe someone will come along who knows and can set us straight though...

I’m another not understanding how an English person using a temporary residence in Scotland to obtain a GRC via self ID won’t be able to use it in England. Once they have all their documents listed as the opposite sex & people aren’t supposed to ask for a GRC (assuming a Scottish GRC will look different) how exactly will they be stopped?

Delighted that the juggernaut has been slowed in England but please please make sure you complete our consultation! Doesn’t need to take long Guidance here forwomen.scot/
#binthebill

Yogyakarta isn’t binding, so that ‘Scotland must have’ must mean something actually binding on Scotland though, mustn’t it. Like an actual confirmed obligation under ECHR, surely.

Would that be the original ruling which resulted in the GRA2004? Or one of the later ECHR cases? Although I think that would mean that all European countries are obliged to have a 'system for obtaining legal gender recognition', and some of them don't.

Thanks Katy, but I’m confused because that can’t be it, if in good faith the minister in Scotland is saying in the consultation, ‘ To comply with international human rights law, Scotland must have a system for obtaining legal gender recognition ‘

Yogyakarta isn’t binding, so that ‘Scotland must have’ must mean something actually binding on Scotland though, mustn’t it. Like an actual confirmed obligation under ECHR, surely.

Littl thank you, I will definitely fill out the consultation.

I assumed that the Scottish Government were referring to the Yogyakarta Principles Chatty which were drawn up by international human rights lawyers in 2006 and extended in 2017 to include provisions relating to gender identity. However, I do not know for sure.

That’s a link to fill in Scottish consultation on self id ☝️

Please fill it in

www.snpwomenspledge.com/

Sorry I meant to say ‘pre-2004’ not ‘in 2004’

Going back to looking for examples of human rights-based justifications for countries being required to provide a legal mechanism for people to change legal sex..

(I get it that in the UK in 2004 this was done to avoid discriminating against trans people in the UK because it was a time when for example same sex marriage was not legal, and when there were different retirement ages between the sexes. Now these issues are resolved and are not issues of discrimination any more... I wonder is there any reason we still have the GRA..?)

Could any lawyers around, say if there is an established human rights necessity for the UK to keep the GRA? (Or necessitating any country under EConventionHR to begin provide it, if they don’t already have something like this?)

I am wondering if there is any such requirement to provide a mechanism to legally change sex, then what happens in ECHR countries that do not offer this? Has this human right necessity ever actually been determined?

and surely if it had been established as a human right under ECHR, then why would this legal change human right only be necessary with sex?-why would there not also be a requirement to offer a legal change system around people’s age, race, disability or any other characteristic?

Lex I think you asked for examples of where a human rights basis for requiring a state to have a GRA has been claimed.

Here’s one, from the Ministerial Foreword introduction to the consultation in Scotland on their GRA reform. The minister doesn’t offer any basis to justify it though:

’To comply with international human rights law, Scotland must have a system for obtaining legal gender recognition. Since 2004, trans people across the UK have had the right to legally change their gender through applying for a Gender Recognition Certificate.’

www.gov.scot/publications/gender-recognition-reform-scotland-bill-consultation-scottish-government/

Can any lawyers comment on what is this ‘international human rights law’ referred to?

Is it real, or is it Stonelaw? (In which case shouldn’t a minister be using proper legal justification in a formal consultation like this?) or is it a comment on the legal situation in the UK in 2004, while ignoring that the discriminatory situation eg on same sex marriage, has been (quite rightly) legally reformed since that time?

Thank you Katy for your posts.

Is that true though? Scots laws are passed in and for Scotland. Surely it is then up to Westminster to say that the Scottish GRC will not be valid in England and Wales, not for Westminster to stop Scotland passing the law in Scotland.

It’s devolution. The effect you describe was there before 1998 with respect to marriage.

But there is no blanket provision now that allows for Scottish legal provisions to be accepted across the UK. And this change would be very unlikely to be agreed.

Devolution works because Scotland has certain powers to legislate for its own purposes. But it cannot make effective law that changes how the law in other parts of the UK will operate. Self ID is not going to be UK wide by the back door.

I do not understand why you think Scotland cannot pass this law Lex - as I say, Scotland has an entirely separate family law to England. The Gender Recognition Bill is under the auspices of the family law section of the Scottish government. Scots marriage law is different to England and theoretically effects English people if their 16 year olds hop over the border to get married - and yet that differences has persisted for centuries.

Just reading that Mermaids evidence, thank you @SarahTancredi

"Parents have reported GIDS staff presenting non-evidence based opinions during clinical sessions. This includes unproven ideas of gender identity development (rejecting the validity of trans people, looking for causes of gender diversity), mis-gendering of trans children, telling parents that support for trans children is harmful (when mainstream medical consensus states the opposite) and telling a socially transitioned trans girl they can ‘never be a real woman’. This unethical and non-evidence-based practice contributes to trauma and Mermaids suggests is unacceptable within today’s healthcare system."

I'd be more worried if they told male patients that they will turn into a real woman. Because that would be a lie.

I think the point is that it will not be effective unless there is agreement between England and Wales and Scotland to make this agreed across the UK.

A lot of these posts assume that Scotland do this by itself. If it affects any aspect of what is reserved to Westminster, they can’t.

I don’t want to upset people who are pro SNP or devolution. But they are a lot less powerful than you think.

In its legal effect, it would have to be clear it is confined to Scotland in its effects. I would agree that this issue should be raised with MPs etc in England and Wales to flush it out - but having done that to ensure that this works correctly only for Scotland, this is all very normal. We have lots of different laws between Scotland and England and Wales. That shouldn’t be a surprise - it’s why the SNP want devolution

The criteria for securing a GRC will differ between Scotland and rUK but the effects of holding a GRC and changing your legal sex (and your birth certificate) will be the same wherever you are in the UK.

Which is why everyone in the UK is justified in responding.

People really need to understand this!

I do not agree with self-ID by the way, I was just answering ChattyLions question about why the Scottish government was able to exercise jurisdiction on this.