For Women Scotland in Supreme Court - thread 3

Agreed, Brefugee.
I was desperate for someone to say something like this during the hearing. They got close, but didn't spell it out.

I just hope there were pictures of MCW in the submissions (which I didn't get round to reading before the hearing started).

the thing that has been obvious during all this is that the judges and all the lawyers are talking as though we can't tell that the 6'4" beardy unit in front of us, with their GRC and birth certificate with an F was actually born as a baby boy.

All the talk, all the discussions are based on the erroneous belief that we can't tell

If I understand SG correctly, TW are never W.

Without a GRC TW are men. With a GRC both their sex and gender are female. In that case, they are not trans, are they? There is nothing distinguishing someone who became a woman via a GRC from those who were women without the use of GRCs. We are all equally of certificated female sex and gender.

So no TW is a woman, according to SG.

I may be mistaken. It may be that there is an option with regard to the date the birth certificate was issued, rather than the date of birth.

I'm absolutely staggered to learn that a date of birth can be legally changed, if that's correct.

Just giving this one a bump.

And particularly this bit:

That felt quite decisive for me. It seems to demonstrate that the equality act defines sex as biological sex at least some of the time ... which would surely prevent the judges from concluding that Parliament intended to redefine it in terms of legal sex?

Presumably "some of the time" is enough for "all of the time" when it comes to the definition of a word. Its meaning must remain consistent once it has been agreed upon, otherwise the Act is unworkable at the most basic level. Therefore the intent is clear: sex means biological sex, not sex modified by a GRC.

In reality, it's likely that the TM in this weren't even considered when the law was made. However, good luck to anyone arguing that line of thinking - equally, the Scottish government sounded ridiculous when they tried to suggest its intention was to remove maternity rights from any pregnant TM. It's amazing really that a certificate doesn't change how biology works and that TM still can get pregnant. Who knew?

(Except we all know that service providers want to avoid hassle).

Indeed! But at least it's a clearer message.

It still isn't the provider's problem, I wouldn't have thought.

okay, that makes sense. You refuse entry on the basis you think that's a man, and it's up to the man to provide evidence they're not, but not only that, you don't have to accept the evidence if you don't think it's unequivocal.

That would be great!

(Except we all know that service providers want to avoid hassle).

To be fair to the Scottish government, I think the flowchart was made by someone else. However, it's exactly the logic they presented in court when Ruth Crawford said/agreed that a TW without a GRC was a heterosexual man but a TW with a GRC was a lesbian woman.

The real idiots here aren't the judges. It's people like Nicola Sturgeon who could have chosen to put a stop to this but instead doubled down, even when recognising quite evidently that it made no sense. That clip of Nicola Sturgeon refusing to say whether Isla Bryson is a man or a woman (and settling on the bizarre answer of "that person is a rapist"... thus creating rapist-gender) says it all really. She knew what she was saying made no sense and she didn't dare complete the "logic" the way that Ruth Crawford did. Instead she presumably just hoped that everyone would agree it was obvious Isla wasn't a woman and the whole thing would go away.

Just wanted to say how absolutely bonkers that ScotGov flow-chart linked to above is. How can whether you are gay or straight or lesbian be affected by a piece of you have (or, even madder, that another person has)? Do they ever read this rubbish back to themselves out loud?

I assume the judges go through all the evidence together so will have some interesting discussions to make sure they all have a shared understanding.

For me, no one can make sense of a law that says a natal female with a GRC who becomes pregnant is not entitled to the maternity or pregnancy protected characteristic because they are a man. This is so fundamental that sex has to mean natal sex.

Indeed. Just shows how inadequate the "very speshul secret training" provided for the judiciary by Gendered Intelligence was.
Maya Forstater fought hard to get the details into the public eyer but I think failed. The judiciary / MoJ fought very hard to keep the details secret from the public - likely the embarrassment factor was too great if we were to find outv what judges were actually told 😂

hiyamaya.net/2021/10/19/gendered-intelligence-trains-judges-in-secret-i-am-going-to-court-to-try-to-break-the-secrecy/

Just to add, the same applies for spent convictions for posts exempt from the rehabilitation of offenders act. Candidates are supposed to declare such information during their application process, but this relies on them being honest.

In hindsight I could understand not appreciating the effects until pointed out, but I was disappointed that they didn't know the basic terminology. They did seem to have made great strides in understanding by the following day, so i give them credit for that.

Can you ask for an original BC?

It still isn't the provider's problem, I wouldn't have thought. Male person turns up, male person turned away. Male person returns with BC to "prove" they are female - up to provider whether they accept it. If they don't, nothing male person can do. They have no standing to make a claim under the EA because all male persons are being excluded. Unless they are in fact a female - a WCM, perhaps? But in practice a female like that is unlikely to be seeking out women-only provision.

I was also astounded at how ignorant the judges were - you'd think they'd have done a bit of background reading beforehad. I think their ignorance illustrates the problem - people just don't see the issue, unless it either affects them or stares them in the face Isla Bryson style

Surely they can't alter their date of birth on the new birth certificate???

That's astonishing!

So a birth certificate can be a complete work of fiction.

Oh, right. So the date of issue of the altered certificate can be falsified as well?

If I've read the guidance aright, they can choose to have their actual birth date on the falsified amended birth certificate.

Home Office Gender recognition
Version 22.0 Guidance for His Majesty’s Passport Office staff examining passport applications from customers who ask for a change of gender on their passport

under "Birth certificate issued in a new gender"

It's no longer your problem, though. You perceived a male person to be a male person and lawfully discriminated on that basis. It's up to the male person to prove that you discriminated against a female person with the PC of GR.

Step one of which would be for them to establish that they are in fact female. A birth certificate with an altered sex marker would be at least 18 years "younger" than the person presenting it. so that would tell you they are in fact the opposite sex.

I agree. But what does that constitute? Cheek swab?

A man produces a birth certificate to say he's born female , when he's quite evidently a bloke, what are you supposed to do?

Ask for proof of actual sex. Isn't the burden of proof on him to prove that he's actually female, if that's your requirement?

A birth certificate is obviously not proof of sex, as long as it can be modified by GRC, so it's no use him presenting it as such.

But equally, I'm sure there are still quite a few women who would like it repealed, regardless.
For all the reasons. It's sexist, delusional claptrap. And an acknowledgement that it should never have been enacted in the first place would be good.

I completely understand (and agree with) the point about the sexism. However, as long as it's toothless in law, I can live with the sexist nonsense within it, much as I do with the sexism in the bible and quran. A toothless GRA would have a similar status in society, where there is a variety of people who interpret it different ways but none of it is ratified in the law of the land e.g. some people think that living according to God's/Allah's way means traditional, rigid roles according to sex are important (looking at you, Matt Walsh). Some religious people think that's bollocks. Likewise, for some people with a GRC, wearing clothes that are stereotypically associated with the other sex is important. But others will simply see the "I'm a lady" comedy sketches being taken seriously.
Sexism will never be stamped out of society. This at least gives us a fighting chance of stopping the law from validating it in the ludicrous way that it does now. I'm happy for TW to buy their £5 lady tickets (and TM their £5 man tickets) as long as they don't force the rest of us to say we accept that their gender (belief) as a substitute for their sex (fact).

I would argue that the original purpose of the GRA has been superseded by the legal recognition of same sex marriage. There is no bar to getting married irrespective of the sex (and gender identity) of the parties.

Agreed.

Therefore, it is difficult to see what purpose the GRA serves apart from the right to falsify your birth certificate. There are real concerns about people being able to falsify legal records to reflect a belief about themselves.

Yep. This needs to end. It would be possible to treat it in a similar way to religion from a "dignity" perspective e.g. if I worked in a hospital and my clinical recommendation was to do a blood transfusion, yet the person's religion said this was forbidden (e.g. Jehovah's witness), that doesn't change my recommendation. It also doesn't stop me giving blood transfusions to anyone else. Yet the GRA would force me to consider my patient to be the opposite sex, if sex in the EA doesn't mean biological sex. If I'm a gynecologist, I can't specialise in women's reproductive health without also including the women with, testicles, penises and/or neo-vaginas. My clinical recommendations are compromised by me being forced to accept someone's belief as fact e.g. as a gynecologist I'm likely to recommend that a TW with pain or symptoms down below sees a different doctor, given my specialism doesn't cover their care. Or does their magic certificate mean that am I going to be forced to widen my specialism to accommodate their belief about themselves, plus support them going on the women's ward?

Common sense suggests that in the scenario above, I should have access to the patient's actual sex on their records, they can go to a general ward (or perhaps their will be trans health specialists if there is enough demand) and staff can choose to use the patient's preferred pronouns etc or not. How people accommodate others' beliefs will vary. Personally in this scenario I would just avoid pronouns altogether when talking about the patient (unless using the term "the patient") and avoid mentioning the patient's sex in front of them. Much as I would avoid talking about the benefits of blood transfusions to a Jehovah's witness if it was already clear that this was a no go area. There are plenty of different ways to provide care without causing the patient to feel "disrespected". However, demanding that people accommodate your belief as fact and then calling it disrespectful when/if they don't is nonsense. No wonder so many people now use sex-based pronouns in such situations.

The advantage of the FWS argument is that we don't have to repeal the GRA to get our rights back - it would be irrelevant to the EA - but it also reveals why the GRA should be repealed.

As well as the absurd and harmful consequences of accepting s9(1) as an untrammelled provision, the arguments of both FWS and SM revealed the general redundancy of the Gender Recognition Act itself.

IANAL, and I may have got this wrong, but I thought it applies anywhere.

If FWS's interpretation is correct, and GRCs don't turn male people into women, then if you turn a male person away from the women's spa, or the women's book club, or turf them out of the women's toilets, it doesn't matter whether they have a GRC or not, because a GRC doesn't make them female.

Whether they have the PC of GR or Sex (male) or both, you can turn them away if excluding all male people is a proportionate action to a achieve a legitimate aim. Privacy, dignity and safety are absolute human rights and always a legitimate aim.

Again, this might be my ignorance, but there doesn't seem to be a separate test in the EA for the exclusion of GRC holders compared to other MCW, or male people generally. There is one PC - Gender Reassignment - that covers all MCW, with or without a GRC. I don't think there is a two-tier system for the lawfulness of exclusion from a single sex space or service. It's just that it has been argued that it would be unreasonable to object to the presence of the mythical MCW who totally passes, maybe?

The "unachievably high bar/case by case" arguments, I think, were from the EHRC guidance from about 2018, when a TA was in charge, and of course the (bonkers) Inner House judgement more recently. I'm really not sure those approaches are actually in the legislation.

I would love the lawyers on the thread to explain. As I said above, I could have got all of this wrong. But I feel sure that that was how it was intended to work. The comparator for a MCW is other male people, GRC notwithstanding - if not, you get the absurd consequences we all know about.