Can Goodwin be overturned?

As it would be - thank goodness! - absolutely impossible to legislate for 'what a woman looks like', in the interests of fairness to them all trans-IDing men must be treated the same. The right to privacy cannot be extended to their actual sex in contexts where sex is either relevant or recognisable. Anything to do with verifying identity, for example.

Given that the context of the GRA was geared towards ‘old school’ transsexuals (i.e. before online gender woo), I would imagine this was born of the notion many male doctors would have had in gender medicine - that women are mere objects that can be replicated on the body of a man, and that it’s possible for a man to look ‘completely’ like a woman and to fool anyone, because those male doctors (who probably didn’t have the same evolutionary traits of sex-recognition that women had to develop out of necessity to survive) saw a man with a boob job and a bit of facial surgery and a dress as indistinguishable from an actual women. People pushing these sexist ideas and surgeries likely wouldn’t have been listening to what actual women thought anyway, not least as most of the old school cohort of transwomen were likely trying to attract a husband rather than a wife.

Also, those transsexuals who all trod the same established, onerous and detailed medical and surgical treatment path probably did pass far better than the average trans person, who typically eschews surgeries (and sometimes hormones) does today.

The notion of privacy in terms of gender reassignment only genuinely arises in people who actually pass, and I suspect the modern insistence on pronouns, not misgendering or deadnaming, and TWAW is designed to bridge the gap between passing and not, by creating the illusion that the TW does pass so they can live as if no-one knows they’re trans, even when we all do tend to know really.

I think since the cohort of trans people (and the accompanying narrative) has changed so significantly from the days of the GRA (as the SC acknowledged: nowadays, a transwoman with a GRA could potentially be indistinguishable from any other man), it could be argued that a transwoman who doesn’t pass doesn’t actually enjoy the right to privacy around his biological sex anyway, so neither the EA nor the SC ruling has removed the privacy they enjoyed as people can see they are trans anyway as they still live in their male body (and were still socialised as male, which is another glaringly obvious clue for women).

I would also argue that, because trans activism has been so incredibly successful in persuading the general public to treat someone as the sex they’re trying to present as, even when it’s obvious they’re trans, the transwoman himself is actually the least reliable person to know whether they truly pass or not, as everyone around them will lie out of politeness, so the perception they gain from their “lived experience” is actually less valuable than a stranger’s opinion on whether they pass (which would be a horribly inhumane court case which I’m sure no judge would want to touch with a bargepole - it feels more like something RuPaul should judge than the ECtHR).

In any case, a transwoman’s right to privacy can’t possibly trump women’s right to be protected as a class based on biological sex, so where breaching a transwoman’s privacy to confirm his biological sex is necessary to give effect to women’s sex-based rights (which affect far more important areas like safety) then on balance, that privacy breach is obviously a necessary and proportionate one.

A nude person behind a chain barrier was not a mental image I wanted.

If the GRA is there to protect the trans-IDing person's right to privacy, how does this fit with the fact that the person generally still looks their actual sex? It's like legislating that a chain strung between two posts now means that the nude person on the other side of the chain is not visible, because if the chain was a wall they would not be visible.

Lawyer Peter Daley looks at the prospects for a case. Basically it is a no hoper so lets hope the TAs waste their time and money on it.

The assertion is being made that the Supreme Court judgment in FWS places the UK in breach of its ECHR obligations, as laid out in the case of Goodwin v UK. A court case is apparently being prepared on this basis.

I think this may be seriously misguided.

https://threadreaderapp.com/thread/1916519030279594463.html

@theilltemperedqueenofspacetime I think the issue with old-school transsexuals speaking out (and many do), is that the DSM no longer recognises the medical framework that comprehensively analysed them and diagnosed their condition and facilitated their transition.

So while their needs are often distinct from culturally trans people, (1) there is no way for modern trans people to follow the same path as them as TRAs have succeeded in removing the medical diagnosis pathway (thus screwing over all people with genuine gender dysphoria) and (2) the other newer cohort of culturally trans people still exist and have different characteristics.

It’s unfortunate, as TRAs have actually weakened the position of actual transsexuals, both medically and legally.

They're suggesting something more like cultural warfare - persuade the public they're terribly hard done by and get institutions to bend the law or even take it to the point of civil disobedience.

The mask hasn't just slipped, it's lying shattered on the floor.

Good point about single-sex spaces.

The issue of having to hide someone’s biological sex doesn’t really make much sense now we have the EA. I can understand how it might have been an issue before Stonewall and the trans rights movement appeared, but nowadays, it’s not like anyone should need to be embarrassed about being trans (aside from being associated with extreme TRAs).

Trans people aren’t classed as having a medical condition whereby they are so fragile that they can’t handle the truth of their biological sex - gender identity is treated as a cultural identity rather than a medical condition now, so I don’t think it makes sense now to facilitate them hiding the truth, as it implies they should be ashamed of their journey and their feelings.

They are protected from harassment for being themselves and it feels quite regressive for the government to help them hide the truth about their biological sex like it’s something shameful.

I know this thread is about the law, not culture, but I do think a cultural shift is needed.

Some TRAs are rejecting the idea of legislation (amend the EA) or litigation (take a test case all the way through to the ECHR), because it would take too long. They're suggesting something more like cultural warfare - persuade the public they're terribly hard done by and get institutions to bend the law or even take it to the point of civil disobedience.

We need a different paradigm, of (eg) male transsexuals being out and proud, recognised in law, protected from discrimination, and not burdened with expectations about passing or medical treatments. But, crucially, not women. I wonder what % of TW would be up for it. (I realise this shouldn't be our problem, but it is.)

It wouldn't be hard to set up a formal pathway for getting a new NI number with a new name without falsifying birth certificates. The GRA could be reformed to provide that pathway: you'd get your gender recognition certificate and that would entitle you to a new NI number and your old NI contributions transferred to it.

But isn’t the point of the new NI number to effectively erase their past so employers don’t find out their biological sex is different from the way they present?

Since their employers need to provide single sex spaces, the employers would need to know their sex anyway.

And the issue of humiliation caused by people finding out a person is trans (as happened in Goodwin, I think?) won’t be an issue now we have the EA, as trans people are protected from that kind of abuse now anyway.

I see a problem with Article 8 (right to privacy - part of Goodwin's case was that the fact that she kept the same National Insurance Number meant that her employer had been able to discover that she previously worked for them under another name and sex, resulting in embarrassment and humiliation).

It wouldn't be hard to set up a formal pathway for getting a new NI number with a new name without falsifying birth certificates. The GRA could be reformed to provide that pathway: you'd get your gender recognition certificate and that would entitle you to a new NI number and your old NI contributions transferred to it.

The GRA has turned everyone's birth sex into private personal information. This must be reversed. Sex discrimination law is unworkable if we don't know people's sex.

The GRA has created a legal fiction that everyone's birth sex is private personal information. We know that in reality, people have eyes and make accurate spot assessments of other people's sex all the time. In the same way, GDPR creates a legal fiction that someone being disabled is private personal health information, when in reality a lot of disabilities are very visible and people with hidden disabilities have to out themselves all the time to get reasonable adjustments. And race is supposedly private information, but people have eyes and can see if someone is Black.

I think it's fair to say that a substantial detriment to public interest (the rights of women and religious minorities) flows from treating transsexuals as having actually changed sex

Exactly. When ECtHR decided that "society might reasonably be expected to tolerate a certain inconvenience", they neglected to consider women and girls, in particular those who are already vulnerable through disability or the victims of male violence.

The GRA has turned everyone's birth sex into private personal information. This must be reversed. Sex discrimination law is unworkable if we don't know people's sex.

I completely agree.

I think this will necessarily be confronted now as people grapple with the implications of the SC ruling, such as the GMC keeping doctors’ biological sexes confidential, and so on.

Hopefully, we can find a way forward, e.g. by adding an exemption to the UK Data Protection Act, similar to the ones for things like job references and exam scripts, on the basis we need the exemption to be able to function as a society and for the EA to be implemented effectively.

I get the gist that the GRA had the effect of avoiding certain human rights problems and, therefore, repealing it would conflict with our obligations under human rights law.

Some of the problems have already been solved, by the legalisation of single-sex marriage and by equalising tax and pensions law.

The other obligations laid on us by Goodwin are the legal recognition of transsexuals (GRA) and non-discrimination against them (EA), which seems unobjectionable.

The other implied outcome of Goodwin (transsexuals to be treated in law as if they had actually changed sex) has to my mind been effectively overturned by the EA itself.

Summary of relevant parts of Goodwin:

No concrete or substantial hardship or detriment to the public interest had been demonstrated as likely to flow from any change to the status of transgender people. Society might reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the gender/sex identity. It concluded that the fair balance that was inherent in the Convention now tilted decisively in favour of the applicant. There had, accordingly, been a failure to respect her right to private life in breach of Article 8.

I think it's fair to say that a substantial detriment to public interest (the rights of women and religious minorities) flows from treating transsexuals as having actually changed sex), and the EA solves this by treating the various protected characteristics involved completely independently of one another.

The sexes must by law be treated equally as far as possible, but when they really need to be treated differently then that cuts across other PCs and can't be overridden by a GRC.

I see a problem with Article 8 (right to privacy - part of Goodwin's case was that the fact that she kept the same National Insurance Number meant that her employer had been able to discover that she previously worked for them under another name and sex, resulting in embarrassment and humiliation).

The GRA has turned everyone's birth sex into private personal information. This must be reversed. Sex discrimination law is unworkable if we don't know people's sex.

What he’s saying makes sense in respect of the fact if you repeal the GRA, the case law that precipitated it (i.e. Goodwin) would still stand, so from this clip, he seems to be suggesting that you’d have to keep going back to court in each individual circumstance where a trans person who’s had surgery wanted to change their documents if we didn’t have the GRA.

But I think I must be misunderstanding the point he’s making, as obviously that’s not how the law works - we don’t need a new statute for every piece of case law that’s decided, as the case law is the law - there would simply be guidance on the fact trans people who’ve had the surgery should be entitled to x,y,z (as in random entitlements, not chromosomes..).

I guess the point he may be making is that if we repealed the GRA, we’d still likely need to go over all the same ground that Goodwin covered in making some new law or policy to replace the GRA, and would still get tangled in the whole forced sterilisation point, and so on.

I think the point he seems to be forgetting is that the situation would be quite different if the only trans people we were talking about were those who had been diagnosed with gender dysphoria and who have gone through all the surgeries.

Obviously, there would be many areas where even this group of trans people should still be recognised by biological sex (i.e. to where the FWS SC judgment has brought us to), but I do still think that if we were only talking about cases of genuine psychologically distressing gender dysphoria and people who have undergone all the surgeries, it would be a different landscape that would require a very different conversation from the current one anyway.

There was also a CJEU case recently about data protection and being allowed to change gender on official documents. As the UK has kept GDPR, unless data protection legislation is significantly changed and there are limits put on rectification in terms of gender identification then the GRA likely can't be overturned

I don’t think Goodwin needs to be overturned, as it relied on gender dysphoria being a recognised medical condition (which it was at the time), so Goodwin can easily be differentiated from modern trans discrimination cases, thanks to Stonewall’s campaigning which has de-medicalised transgenderism. It’s quite easy for a court to see why that situation is nothing like someone being a woman because they feel they are and “they know what they are”.

Para 64 from the FWS SC judgment explains the context of the Goodwin decision:

64. The ECtHR was struck in particular by the fact that the National Health Service recognised the condition of gender dysphoria and provided reassignment surgery “with a view to achieving as one of its principal purposes as close anassimilation as possible to the gender in which the transsexual perceives that he or she properly belongs” (para 78). Yet there was no legal recognition of her changed status in law. The Court discussed medical evidence about the causes of what it called “transsexualism” and noted that the vast majority of Contracting States, including the UK, provided treatment including irreversible surgery. However, the ongoing debate about the exact causes of the condition were of diminished relevance because “given the numerous and painful interventions
involved in such surgery and the level of commitment and conviction required to achieve
a change in social gender role” it could not be suggested that there was “anything arbitrary or capricious in the decision taken by a person to undergo gender re-assignment”: para 81.

The FWS SC judgment goes on to explain that the GRA went further than Goodwin to include trans people who hadn’t had the invasive surgeries (on the basis it would have be unfair to make additional rights depend on sterilisation), so IMO, Goodwin isn’t really applicable nowadays anyway, since gender dysphoria has been removed from the DSM and isn’t recognised as a medical condition anymore.

On that basis, I’d say that Goodwin isn’t particularly relevant to modern life (since it largely turned on the medical diagnosis and treatment, so more like a disability than a cultural thing), and that it’s the GRA is the issue (especially in terms of retroactively changing birth certs, etc).

If the law is applied correctly, the FWS judgement supersedes any prior judgements that it contradicts.

Ah sorry, see what you mean.

I found the clip, it's from an LGB Alliance event I think:
Michael Foran on X: "I am not a campaigner and have no intention of being one. I can advise on the law. You might not like what I have to say. Here is a clip of me talking about repeal of the GRA. You might not want me on your campaign because this is what I’ll say. https://t.co/WNCBhvceE5" / X

Sorry I can't remember where it was...
Remember it was a panel of about 4 of them (clever people!) on stage, and he explained that in order to repeal GRA then UK would need to exit European Court of Human Rights, both of which would leave a gap in UK legislation which judges would fill by making it up on a case by case basis.
My paraphrasing might not be accurate!
I am not doubting Michael Foran's analysis, I think he's brilliant and his legal explainers have been so helpful. I am just annoyed we need to have what is a lie enshrined in law...

I'd also like to rewatch it if anyone can remember it