JR of ScotGov's Section 35/GRR bill - next week

ArabeIIaScott · 2023-09-11T18:11:53+00:00

MBM have shared info on the 'interveners': Scottish Trans/Equality Network, Stonewall, Gendered Intelligence, and the ICDR: [[https://murrayblackburnmackenzie.org/2023/09/11/who-are-the-interveners-in-the-judicial-review-of-the-uk-governments-use-of-section-35 https://murrayblackburnmackenzie.org/2023/09/11/who-are-the-interveners-in-the-judicial-review-of-the-uk-governments-use-of-section-35/]] 'Robin Moira White, Adam Wagner, Sam Fowles and Stephanie Davin are also assisting in the proceedings'

BernardBlacksMolluscs · 22/09/2023 10:01

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Beowulfa · 22/09/2023 09:48

SaffronSpice · 22/09/2023 09:44

Is this the person who didn’t want to change their male voice because they felt it carried more gravitas in court?

To be fair to Robin, Robin did explain that this is risky surgery and if complications resulted in the inability to speak loudly and clearly this would impact Robin's day job.

SaffronSpice · 22/09/2023 09:44

Is this the person who didn’t want to change their male voice because they felt it carried more gravitas in court?

BernardBlacksMolluscs · 22/09/2023 09:41

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BernardBlacksMolluscs · 22/09/2023 09:39

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JanesLittleGirl · 21/09/2023 18:45

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OldCrone · 21/09/2023 17:43

As ever, it comes down to whether you think men and women are defined by their sexed biology, their bodies, or whether they are defined by arbitrary, changeable, and superficial sex stereotypes.

RMW seems to think that it's the latter. RMW (when still at the part-time crossdresser stage) blogged about using the women's toilets when wearing a skirt and heels, but presumably didn't do this when wearing a man's suit.

Tallisker · 21/09/2023 13:56

And my ears. And my nose.

Signalbox · 21/09/2023 13:47

JanesLittleGirl · 21/09/2023 13:45

If RMW is right then why are my eyes telling me something different?

Show quote history

Trust your eyes :)

JanesLittleGirl · 21/09/2023 13:45

Signalbox · 21/09/2023 13:26

As ever, it comes down to whether you think men and women are defined by their sexed biology, their bodies, or whether they are defined by arbitrary, changeable, and superficial sex stereotypes.

RMW thinks all TW over 18 are adult human females so presumably RMW would argue that this is about sex rather than gender. I wonder what miracle happens at age 18 that transforms males into females?

If RMW is right then why are my eyes telling me something different?

Signalbox · 21/09/2023 13:26

As ever, it comes down to whether you think men and women are defined by their sexed biology, their bodies, or whether they are defined by arbitrary, changeable, and superficial sex stereotypes.

RMW thinks all TW over 18 are adult human females so presumably RMW would argue that this is about sex rather than gender. I wonder what miracle happens at age 18 that transforms males into females?

JR of ScotGov's Section 35/GRR bill - next week

Original poster

ArabeIIaScott · 21/09/2023 12:19

TLDR:

''The comparator is someone who’s in the same or similar enough situation to you, but who doesn’t have the same protected characteristic.

... there must be sufficient similarities between the two of you to show that the reason for the worse treatment is the protected characteristic and not something else.'

So the crucial point is whether there are sufficient similarities.

What does a woman who isn't trans have in common with a transwoman?

Skirts? Shoes?

As ever, it comes down to whether you think men and women are defined by their sexed biology, their bodies, or whether they are defined by arbitrary, changeable, and superficial sex stereotypes.

Is a woman a human with a sex that has been set since conception and has affected her life in myriad ways since before birth, all through childhood, puberty, periods, pregnancy, birth, breastfeeding, menopause, and will remain the same long after her body has rotted and only bones remain, or anyone who makes certain hair and lipstick choices?

It's a toughie.

OP posts:

Original poster

ArabeIIaScott · 21/09/2023 11:57

Edited for stray apostrophes. Citizens advice seems to have banished them altogether from their name ...

OP posts:

Original poster

ArabeIIaScott · 21/09/2023 11:55

'the correct comparator for a trans woman without a GRC is a man without the gender reassignment characteristic. If For Women Scotland is correct, that will change if the trans woman has a GRC. The comparator would then be a woman without the gender reassignment characteristic. This would mean that the Equality Act does draw a distinction between those with GRCs and those without them, classing those without a GRC as their biological sex and classing those with a GRC as their legal sex.'

From Foran's article, above.

The EHRC on comparators:

https://www.equalityhumanrights.com/en/advice-and-guidance/gender-reassignment-discrimination

EHRC

'The Equality Act 2010 says that you must not be discriminated against because of gender reassignment.
In the Equality Act, gender reassignment means proposing to undergo, undergoing or having undergone a process to reassign your sex.
To be protected from gender reassignment discrimination, you do not need to have undergone any medical treatment or surgery to change from your birth sex to your preferred gender.
You can be at any stage in the transition process, from proposing to reassign your sex, undergoing a process of reassignment, or having completed it. It does not matter whether or not you have applied for or obtained a Gender Recognition Certificate, which is the document that confirms the change of a person's legal sex.
For example, a person who was born female and decides to spend the rest of their life as a man, and a person who was born male and has been living as a woman for some time and obtained a Gender Recognition Certificate, both have the protected characteristic of gender reassignment. '

So the comparator is a non-trans person.

The comparator is not located in one's sex; it's to do with whether one has proposed or has undertone a process to reassign sex.

But the comparator also has to have enough in common with the person to compare them.

See Citizens Advice's clear advice:

https://www.citizensadvice.org.uk/law-and-courts/discrimination/check-what-type-of-discrimination-youve-experienced/comparators-in-direct-discrimination-cases/

'The comparator is someone who’s in the same or similar enough situation to you, but who doesn’t have the same protected characteristic.
What's meant by someone in a similar enough situation?It’s not necessary for you to be in an identical situation as the comparator. But there must be sufficient similarities between the two of you to show that the reason for the worse treatment is the protected characteristic and not something else.'

A woman who isn't trans has nothing in common with a transwoman. A man who isn't trans has sex in common.

Gender reassignment discrimination | Equality and Human Rights Commission

What is Gender Reassignment discrimination? We explain its definition, areas covered and what constitutes discrimination.

https://www.equalityhumanrights.com/en/advice-and-guidance/gender-reassignment-discrimination

OP posts:

Original poster

ArabeIIaScott · 21/09/2023 11:40

StripeySuperNova · 20/09/2023 22:55

Hi Robin
Can you direct me to the case law precedents that you believe back up your assertion here? Only, Legal Feminist and Sex Matters would both appear to disagree with you. It would be good to see what makes you so sure.
Thanks

https://www.legalfeminist.org.uk/tag/comparators/

https://sex-matters.org/wp-content/uploads/2022/11/Why-is-Sex-Matters-calling-for-clarification-of-the-Equality-Act-2.pdf

Show quote history

Michael Foran was also pretty clear on the comparator.

https://www.scottishlegal.com/articles/michael-foran-getting-the-equality-act-right

Michael Foran: Getting the Equality Act Right

Gwyneth King recently published an opinion piece claiming to set out some facts about the Equality Act as it relates to gender recognition reform. Almost everything she wrote is wrong, writes Dr Michael Foran. King argues that the default position in t...

https://www.scottishlegal.com/articles/michael-foran-getting-the-equality-act-right

OP posts:

Melroses · 21/09/2023 11:17

DiabolicalFinial · 21/09/2023 09:30

I have an extremely bad headache.
Is this the prostrated one of a toilet floor thread?
Thanks for the assistance.

yes

BinturongsSmellOfPopcorn · 21/09/2023 10:16

StripeySuperNova · 20/09/2023 22:55

Hi Robin
Can you direct me to the case law precedents that you believe back up your assertion here? Only, Legal Feminist and Sex Matters would both appear to disagree with you. It would be good to see what makes you so sure.
Thanks

https://www.legalfeminist.org.uk/tag/comparators/

https://sex-matters.org/wp-content/uploads/2022/11/Why-is-Sex-Matters-calling-for-clarification-of-the-Equality-Act-2.pdf

Show quote history

As our legal friend appears to have missed this, I'll stick my own non-legal oar in.

My recollection from lawyers' contributions to Parliamentary committee discussions passim is that it depends on whether the trans person has a GRC or not. As most of them don't, the comparator is usually someone of the same biological sex; but if they do have a GRC it gets fuzzier and the comparator (for things like equal pay claims, but not for things like access to single sex provision) could be someone of the same sex as their GRC-stated legal sex.

Which is one of the reasons the EA needs clarifying, so everyone knows exactly where they stand.

DiabolicalFinial · 21/09/2023 09:30

I have an extremely bad headache.
Is this the prostrated one of a toilet floor thread?
Thanks for the assistance.

Boiledbeetle · 21/09/2023 00:03

IwantToRetire · 20/09/2023 17:06

I wonder if her publicly admitted misunderstanding about Gender Re-Assignment is grounds to saying her earlier ruling was defective and should be over turned.

It was surprising that something so basic that the majority of us on here know was a surprise to her, which does make you wonder what else she didn't understand during her earlier case.

I'm glad I'm not an employer these days! Thanks to crap laws this stuff is a nightmare. If even judges can't get their head around the many loopholes the GRA created how are employers supposed to?

In my opinion it needs to go and we can go back to treating a transwoman exactly as they should be treated in law which is exactly like any other man. After all we all know you can't actually change sex.

And some surgery, some pills and a new set of clothes does not a woman make! It just makes a man who has had surgery, is on medication and has a new wardrobe!

I'll be nice to them if they are nice, and i won't be If they aren't. And any man who thinks it's OK to go into women only spaces... Well I'm sure you can imagine exactly what I think of them!

But I do know one thing as just your average Josephine I'm very much at the say what you see stage of life. If I see a man going into a women only space, no matter how that man chooses to dress or what name they give themselves, as I don't know, or give a stuff, whether they have a GRC, No GRC, have started their transition,this week, last week a decade ago. Are transitioning at all or just like wearing non stereotypical clothing, I don't care. If I'm in the queue and a man is in the queue I'll be having my say very vocally.

I'm sick of women being expected to budge up and make room for the man. No! Tell the men to budge up and make room for their male colleague who thinks he's a woman.

StripeySuperNova · 20/09/2023 22:55

RobinMoiraWhite · 20/09/2023 22:43

A popular misconception about the relevant comparator.

Show quote history

Hi Robin
Can you direct me to the case law precedents that you believe back up your assertion here? Only, Legal Feminist and Sex Matters would both appear to disagree with you. It would be good to see what makes you so sure.
Thanks

https://www.legalfeminist.org.uk/tag/comparators/

https://sex-matters.org/wp-content/uploads/2022/11/Why-is-Sex-Matters-calling-for-clarification-of-the-Equality-Act-2.pdf

comparators -

https://www.legalfeminist.org.uk/tag/comparators

RobinMoiraWhite · 20/09/2023 22:43

SaffronSpice · 20/09/2023 22:07

The equality act requires that a person with a protected characteristic must not be discriminated against compared to those without. So a MAN with the protected characteristic of gender reassignment (“transwoman”) must not be discriminated against compared to a MAN without. You must not treat a transwomen differently from other men eg by excluding them from men’s sports.

A popular misconception about the relevant comparator.

SaffronSpice · 20/09/2023 22:07

The equality act requires that a person with a protected characteristic must not be discriminated against compared to those without. So a MAN with the protected characteristic of gender reassignment (“transwoman”) must not be discriminated against compared to a MAN without. You must not treat a transwomen differently from other men eg by excluding them from men’s sports.

IwantToRetire · 20/09/2023 21:25

No, that's not the case. Unless and until the Scottish Act goes through, it is not possible to get a GRC by self identification.

You are right. But under the protected characteristics you can be protected by Gender Re-assignment just by saying you are on the pathway / intending to transition.

Gender reassignment
(1)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.
(2)A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.
(3)In relation to the protected characteristic of gender reassignment—
... (a)a reference to a person who has a particular protected characteristic is a reference to a transsexual person;
... (b)a reference to persons who share a protected characteristic is a reference to transsexual persons.
(I have no idea what physiological attributes of sex means!)

A person has the protected characteristic of gender reassignment if they are proposing to undergo, are undergoing or have undergone a process (or part of a process) to reassign their sex by changing physiological or other attributes of sex (Equality Act 2010, Section 7 (1)). There is no requirement for a trans person to have any kind of medical supervision or intervention, nor to have a Gender Recognition Certificate, in order to be protected from gender reassignment discrimination. Trans people are legally protected from discrimination from the moment they propose to change their sex.
.

Sorry that's the problem with skim reading when you are meant to be doing something else. So I conflated the fact that you can be protected by the characteristic of transgender re-assignment even if not intending to "transition" with the comment re self identification.

BinturongsSmellOfPopcorn · 20/09/2023 21:09

IwantToRetire · 20/09/2023 17:00

Sorry, but yes horrifying to learn via this thread that Lady Haldane did not seem to be aware that people can get a GRC through self identifying. She presumably has read the EA that says gender reassignment includes those "intending" to transition and are currently living as the "other sex".

Baffling.

No, that's not the case. Unless and until the Scottish Act goes through, it is not possible to get a GRC by self identification.

What is possible, and what LH discovered, is changing your recorded sex on your passport and driving licence (and therefore 'prove' your gender) without a GRC and amended birth certificate.

IwantToRetire · 20/09/2023 18:30

Because they are funded not to.

As Southall Black Sisters are one of the signatories are endlessly taking out injuctions and judividal reviews, that clearly isn't the case. Ditto Centre for Women's Justice.

And in fact is more relevant because their existence is based on the acknowledged need to women only services.

In fact they wouldn't even need to get into the dodgy ground of misuing money from funding for services as presumably CWJ could have done the legal work pro bono.