Keep Prison Single Sex closing

So it's a granularity problem Our beliefs about sex are broadly true and useful, and TRAs are taking the piss re 'intersex' (yes, I know I'm stating the bleeding obvious!)

I have the same problem with all the language distortions. 'Women have cervixes' is fine by me even though not all women have them, and no 'women' have them and some 'men' have them. It's true enough.

The typos are his, not mine, btw

First judgment overturned at appeal, 2019 by Employment Judge Tayler, para 83 (my bold)

"...The claimant largely ignores intersex conditions and the fact that biological opinion is increasingly moving away from a absolutist approach to there being genes the presence or a sense of which determine specific attributes, to understanding that it is necessary to analyse which genes are present, which are switched on, the extent to which they are switched on and the way they interact with other genes. However, I bear in mind that "coherence" mainly requires that the belief can be understood and that "not too much should be expected". A "scientific" belief may not be based on very good science without it being so irrational that it unable to meet the relatively modest threshold of coherence. On balance I do not consider that the Claimant's belief fails the test of being "attain a certain level of cogency, seriousness, cohesion and importance", even though there is significant scientific evidence that it is wrong. I also cannot ignore that the Claimant's approach (save in respect of refusing to accept that a Gender Recognition Certificate changes a person's sex for all purposes) is largely that currently adopted by the law, which still treats sex as binary as defined on a birth certificate. (Continues)

https://assets.publishing.service.gov.uk/media/5e15e7f8e5274a06b555b8b0/MayaForstatervssCGDEuropeCentreeforGloballDevelopmentanddMasoodAhmedd-Judgment.pdf

I don't know, in law or in the judgment.

I would hope that no court would rule a fact in itself (as opposed to supposed implications) could be Non-WORIADS, so hopefully it would never arise. But maybe I'm wrong: maybe some type of highly taboo fact that could never attract legal protection if expressed in an employment context?

Do any lawyers here know if a belief being ruled Non-WORIADS entails a judgment by the court that that belief is false?

The judge in Forstater 1 was taken in by Twitter level TRA arguments about identity and intersex being as common as red hair etc. So I think he did think Maya was objectively wrong.

@GenderRealistBloke

And in a legal environment where sex has already been given non-biological meaning in statute, it seems very high risk to ask a court to accept something different as 'fact'. What if the court holds that, consistent with the will of parliament, it's false?

Wasn't that the effect of the first instance finding in Forstater? If something isn't WORIADS it can't possibly be true either!

Maybe I'm being naive, and the law does allow for things to be both True and Unspeakable...

I tend to agree.

I'm not expert enough to have a view on which legal approach is preferable.

But something being a belief does not mean it isn't a fact. No-one would agree that "all my beliefs are false", but that's the implication of creating that dichotomy.

Also, the belief in Forstater was that "sex is biological, binary, immutable and important". That fourth point is crucial and is a belief (one I agree with, of course).

And in a legal environment where sex has already been given non-biological meaning in statute, it seems very high risk to ask a court to accept something different as 'fact'. What if the court holds that, consistent with the will of parliament, it's false?

I completely agree and from very early on I've felt it was a mistake to focus on risk to women in the single sex spaces as it can be easily dismissed with appeals to how much more "vulnerable" males who identify as women are, and why they "shouldn't be punished for what men do". Privacy and dignity issues for women cannot be so easily handwaved away.

Treating it as a rights issue gives us more ways to win. If based on sex discrimination, the question will be "are women more disadvantaged than men by trans inclusion?". Physical danger is only one factor. It isn't a factor in the BRCC case, and yet women are being denied help if unwilling to share their trauma with (someone they perceive as) a man.

I don't agree with the rights v safeguarding dichotomy either. It is a human right for the vulnerable to be kept safe.

Yes. But there's a sort of wishy washy idea that "trans women" will be more similar to women than men in terms of risk. When actually no evidence shows this is the case and anecdotally it's not. This affects whether in the case of SSE it's seen as a safeguarding issue or a rights issue.

We know it rarely works like that in practice.

This. The rights of transwomen weigh heavy on the scales, and the rights of women, children, and religious minorities might just as well be a feather.

I don't agree with the rights v safeguarding dichotomy either. It is a human right for the vulnerable to be kept safe.

Its amazing how the balancing of rights element of the Equality Act is been treated as the holy text in every situation. Everything else seems to be considered afterwards, if at all.

I agree. That's why I'm wary about claiming it's irrelevant legally what MTFs want because the exceptions say you can exclude all men even those with a GRC.

We know it rarely works like that in practice.

Strikes me it was a flippant reaction to a stupid post.

That's a rather stupid reaction isn't it?

He's not practicing law, there's a big difference..

Its amazing how the balancing of rights element of the Equality Act is been treated as the holy text in every situation. Everything else seems to be considered afterwards, if at all.

It's like trying to legalise up as down

It's as simple and as true as this(!). There's been such a lot gone on in the last few years but it is this, in essence. I think even on here, there's been quite a lot less questioning of positions so long as they've been GC. I've done it. I think it's only in the last year or more recently that I've started to think...hold on didn't this board used to take safeguarding as the primary position? We used to discuss it a lot more. For whatever reason now we don't so much, it's a lot more about GC belief. OK. But what's the point if we might be about to face legalisation of self-ID? We need to step back a bit and think what is real and true, and what will keep women and children safe, and not waver from that.

Yes. This. Every day I think 'shall I type out another useless speculative analysis of the law, or shall I just scream into the void 'wtf is this bollocking bollocks?''

Yep. It took discussions like these for me to grasp the 'comparator ' argument.

Or make a legal case for 2+2=5.

You can do it with words but only by disregarding or breaking reality. And words are based on reality, and have to apply to reality, even if they are signifiers in their own right. Untethered from reality they descend into gibberish.

You are right. Much better we ask a conveyancing lawyer about this than a legal academic specialising in constitutional and equality law.

Probably because it's trying to solidify bullshit into law. You can sort of do it with sophistry, but at the end of the day male and female are separate categories by definition. It's like trying to legalise up as down.

As I've said, I think this is a result of the law being a big mess. It contradicts itself and makes no sense.

Having the GRC is only the first step. Yes, he lost because not having a GRC meant the relevant comparator was another man, and he wasn't disadvantaged relative to the other men. With a GRC he would have had to prove disadvantage relative to the 'other' women and that requires evidence. Exclusion alone doesn't prove there's unacceptable disadvantage, because there might be ways of meeting his needs that don't require inclusion in the women's estate. Furthermore, even if he is significantly disadvantaged, that could still be justified in order to meet a legitimate and proportionate aim (such as safeguarding, or avoiding illegal discrimination re another PC). It's only this last step that we've been debating. Is there a LAPA that justifies discrimination re GR? And how would it be different if we were thinking about the PC of sex? It might seem obvious to us, but I bet the High Court could spend a week on it!

IIRC his prediction for the Section 35 case was pretty spot on

As did nearly everyone else, including many in the SNP who just saw it as a way of illlustrating Scotland isn't independent, and were criticised by some for wasting money on it.

Whether it helped the SNP's reputation in Scotland and I dont know.

I dont think anyone thought they would win, because it would up turn so many existing legal structures between the 4 nations that make up the UK and the UK Parliament.

But courts can be radical.

Wasn't there a move by the Tories, or in fact didn't it go through, that there should not be any Judicial Reviews of HoC decisions because of Gina Miller.