UK Government confirms it will block Scottish GRR

Parts of the BBC aren’t even trying to hide their bias anymore.

Sounds entirely par for the course on The Right Side of History.

20 mins in and no callers allowed on yet.

It is? Are you listening? An SNP MSP who fully supports the GRR and Tory MP Caroline Noakes pretty much supports it too and is mainly frightfully worried about trans people being demonised. So, a great balance, as is to be expected.

I know - how was it that the implications weren't considered - it's what happens if legislation is rushed through without taking proper expert advice. I think that could reasonably said about all the legislation in this space, the GRA, the EA and now the GRR.

I did not know it didn't cover schools. That makes the push to move the minimum age to 16 a really big deal for those who choose single sex education.

Either #1 is true or #2 is true.

Either we are able to exclude males on the basis of sex, or males are able to identify as female.

It's a mess. Lady Haldane correctly demonstrated that the law holds two contradictory positions at once.

1. That women are entitled to single sex (male free spaces)
2. That males can become women

The problem is that they didn't define sex as biological sex. Therefore, although parts of the exemption wording may more logically seem to apply to biological sex, the fact that GRC change sex for all purposes means that unless legislation specifies biological sex then it means legal sex.

This is why the petition to update the EA to mean biological sex is so important.

I think this will be the subject of the Radio 5 Live call in at 10am.

So where the EA defines man/woman as female/male of any age is that definition relating to “legal” sex? Seems so unlikely to me that they didn’t mean biological sex when they wrote the EA.

@IwantToRetire

The Policy Exchange document does cover single sex exemptions there are several pages on the topic see p39 onwards.

One of the issues is that the exemptions only apply to services but not to single sex associations and schools
p45
"The above analysis applies to single-sex services. It does not apply to single-sex associations or schools. Much of the commentary on this Bill, including the arguments advanced by the Scottish government in defence of it, have assumed that concerns relating to single-sex spaces are exhaustively covered by provisions within the Equality Act dealing with single-sex services. It is important to set out the law as it related to single-sex associations and schools as it is different to that which applies to services. Most notably, there is no exception for exclusion on the basis of gender reassignment."

Yea this is what I thought too, that sex is defined as legal sex, and not biological sex. So a man with a GRC is a woman for legal purposes.

Even though it was in many ways an unwelome ruling, it was a positive thing to have that clarity before the bill was passed. Politicians shouldn't have pretended that this affected no one other than the GRC holder.

Hopefully they scrap the GRC all together

I think Haldane basically says someone with a GRC is their chosen sex (legal sex) and should therefore be included with that sex. I think they can still be excluded under the specific single sex exemption clause which allows people who have the protected characteristic of gender reassignment to be excluded (e.g. for refuges etc). But that's the exception rather than the rule and has to be actively applied and justified.

I think, but I'm happy to be corrected cos the whole thing is a mess.

NS hgas boxed herself in politically with this one. On any other issue she could use it as a proxy for the independence fight but not on this issue, which is so divisive, and her proposed legislation frankly dangerous and nuts.

She knows this is not the hill she wants to die on for independence. Your move Nic.

I think it is confusing and that Stonewall inserted it’s interpretation of this to confuse the matter for lots of government and charitable bodies.

Lady Haldane's ruling made clear that SSE could be enforced where appropriate but "for all other purposes" someone with a GRC was the other sex.

I am utterly confused about all this. I thought the reason Haldane's ruling was contentious was precisely because it said that someone with a GRC legally became the other sex. Indeed, the EHRC's response to the ruling was to say:

"We welcome this judgment which confirms that the effect of a Gender Recognition Certificate is to change a person’s legal sex, including for the purposes of the Equality Act."
(www.equalityhumanrights.com/en/our-work/news/statement-following-lady-haldanes-opinion-petition-women-scotland-ltd-judicial-review)

Is the EHRC wrong? Am I wrong? What is going on here?

Just listened to BBC news. Reporter talking about issue being “clash of rights” - which is definitely a shift in bbc reporting. So it’s all sunlight in what’s happening. Had Shona Robinson on as well banging on about how single sex spaces are protected - ie rape centres - where proportionate and TW are excluded. That will be news to lots of single sex provision places in Scotland. If nothing else, it will highlight when single sex needs to be protected.

There was some talk of that. But if the Scottish government is entitled to issue GRCs I expect they'd be valid across the UK and it would be unlawful for government departments across the UK not to recognise them.

Given the erosion of women’s rights that have been introduced gradually through the manipulation of original GRA, I would not like to have seen this approach.

Much as I would like to see women’s rights strengthened through clarification of the EA, to allow dangerous legislation through and only attempt to control the side-effects using other legislation would be a risky path to take.

Nope. The protected characteristic is ‘Gender Reassignment’.. “A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex”
No medical diagnosis or intervention is required for a person to be protected under the characteristic, so it is actually based on self ID.
Trans peoples access to single sex spaces is via the the Equality Act, not the GRC, they don’t need a GRC to do so and can be excluded if proportionate even if they do have one. The GRA reform doesn’t change this.

Isn't it vastly more fundamental than that - which is that the GRR as it relates to reserved power, which may impede national law, ie the operation of the Equalities Act, because there would be an immediate clash as to whether the rest of the UK had to accept self ID, which makes no allowance for this in the EA?

It may be that the bill seeks to say it does not affect the EA as it may operate in Scotland. But you cannot say the same for the rest of the UK.

UK constitutional law is supreme. It says that the Equality Act must apply as stated by Westminster. Scotland has neither the power as a reserved matter or constitutionally to unilaterally introduce self ID in a way that would alter the operation of the law in the rest of the UK. Bloody good thing too.

One of the problems is the Lord Advocate in Scotland also works as an advisor to the Scottish Government...
If this does go to court the SG will have to provide all their legal advice from whatever source.