Good Law Project suing the EHRC and Bridget Phillipson - letter before action

Thank you for this summary. I have tried 3 times to extract meaning but there is so much extraneous detail that it defies understanding for the average person! One of the problems is that they don't have one single killer argument and that they are going for a pick and mix mud-slinging attempt in the hope that something sticks? Or it is just a publicity stunt?

Anyway here is my attempt - which I think gets to the same place as you but with a poorer understanding of the law?!

I got as far as understanding that their letter is a pre-action Judicial Review to challenge the EHRC Interim Update guidance. So it is not legal action appealing the Supreme Court judgment. This doesn't seem to be clearly understood over on Reddit. And if a JR is actually launched it would be on process, not outcome, so even if the EHRC process is found to be flawed, that may not affect their actual advice.

So far so good - no legal action on a procedural matter at the EHRC.

Next it seems they are claiming that part of the procedural problem relates to the consultation not including workplace toilets (and only covering services and associations)?

The letter only deals with GRC holders in workplace toilets. They haven't spelled that out to all the people chipping in to the fundraiser but I suppose they consider this a wedge issue so we can go around the genital inspection/toilet police loop again.

The GLP request seems to boil down to

1. asking the Secretary of State for Women & Equalities to make the EHRC reverse/re-think their interim guidance - ie withdraw it, OR
2. if the Secretary of State agrees that the law has been interpreted correctly that they make arrangements to amend the law to allow trans people to access their facilities of choice.

The sections of law they seem to suggest might need amending by Parliament (if applicable) would be:

• the single sex provisions of the EA and/or
• that tricky section 9 of the GRA "the person’s gender becomes for all purposes the acquired gender" and/or
• the HSE's requirement for separate toilets to be provided for men and women on the basis that the regs don't define male or female.

I can't imagine the Secretary of State will want to open up any of these laws.

Numerically unisex third spaces meets the needs of the largest combined subgroup - 75% of all trans people are non binary plus trans men. It is not in the TRA's interests for this figure to be widely discussed, but if they open up the Workplace Regs that is what will happen...

Is it just me or could this be an own goal?

Lawyers don't like it when you say they are all evil and our legal system is corrupt.

Just occurred to me - is the whole "dinner party" thing from Maugham because he's bitter that no-one in the profession wants to come to his dinner parties any more?

I can imagine he absolutely revelled in being in "good standing" in that evil and corrupt legal system, so he's spiralled into a feedback loop of resentment.

GLP continues to wins fans.

Simon Myerson KC 🎗️
The wisest and most eminent retired Supreme Court Judge, who specialised in Equality Act work at the Bar, before their appointment to the bench in 2001 & who regularly canvasses the views of the 25 most eminent silks, just said to me, “What the hell is Maugham on?”
Honest guv.

Lawyers don't like it when you say they are all evil and our legal system is corrupt. Not a great move when you are pursuing court cases against the legal system. If you are doing publicity stunts with no intention of winning though...

@MyAmpleSheep things have moved on in this thread but I agree with your summation of the GLP argument:

1. that the EHRC guidance directs people to do something unlawful because it overreaches the effect of the FWS judgment and/or
2. the Workplace Regulations are subject to the GRA 2004, not the Equality Act.

I think both arguments are poor. Poor because it’s clear in the GRA itself that a GRC’s effect of changing someone’s sex is rendered null when it makes another piece of legislation (and here it’s crucial that it could be an Act or a regulation) unworkable or incoherent. This paves the way for the interpretation of the EA in FWS to prevail in the application of the Workplace Regs (in situations where not all toilets are of the single self-contained room type, you must offer single sex WCs).

The GLP either don’t understand the GRA themselves or they are willfully ignoring that pesky provision.

He's the Helen Webberley of the legal profession.

Oh bravo to your DH @Another2Cats and brava to you.

Yes, I totally understand why they would do that.

DH and I are doing it old-school though. DH is making a sex discrimination claim as a litigant in person. (We're currently waiting for a reply to the letter before action).

https://www.mumsnet.com/talk/womens_rights/5333650-an-update-to-the-wi-announcement-thread-my-dh-just-got-a-reply-to-his-application-to-join-them

I agree that almost everyone at the time who wasn't an activist wouldn't have seen it as an issue.

What's amazing to me, going back and looking at the GRA debates in Hansard, is that Norman Tebbit of all people anticipated most of the problems we're now aware of. Setting off from a different starting point than us, he saw it was a bad bill and argued doggedly against it through all the Lords stages.

Anyway, this is quite fascinating: Gender Recognition Bill Hl - Hansard - UK Parliament

Lord Filkin, for the government, putting a rather different line of argumentation than current Labour politicians would.

Lord Winston giving a rather mystical speech about how sex is an incredibly complex thing that nobody really understands (he's improved a lot since).

Lord Tebbit, specifically on the precondition point, taking the line that although he's opposed in principle to the bill, he also believes it inhumane to force transsexuals to submit to surgery in order to benefit from the bill's provisions.

It's a lot more illuminating than the Commons debate, where the responsible minister (hello David Lammy) obviously didn't understand the legislation he was piloting through the House, and most MPs who spoke were just virtue signalling.

I'm utterly mortified to have to declare this post wrong, because Schedule 3 does not apply to workplace toilets. The case law mentioned by Irwin Mitchell (it's sex discrimination not to provide single-sex toilets at work) hopefully leads us to much the same conclusion, given that sex-discrimination law is governed by the Act.

Irwin Mitchell are known for taking personal injury / compensation cases.
Suspect they see numerous opportunities to take cases against all the idiot organisations who have written sad letters about poor trans people and indicated they may defy the SC judgment.

There's a good discussion on this thread - essentially it will be like shooting fish in a barrel if a woman takes a case against her employer for discrimination because of lack of single sex facilities and the employer's sent one of these letters to their staff:

www.mumsnet.com/talk/womens_rights/5337814-very-clear-article-on-legal-position-for-retailers-and-single-sex-facilities

So it was already accepted by then that surgery couldn't be a precondition.

Don't think you can conclude that - the activists involved in lobbying for the law wouldn't have wanted it to be a precondition. And as you say, for the non-activists involved, they probably thought it was a non-issue.

They probably didn't have to reach the certainty of "it couldn't be a precondition". Hard to say if they even considered whether it would be a problem.

These were excellent.

I'm probably wrong in that case - I'm just going by my memory, which can be faulty!

But the text of the GRA also does not require surgery, though it does mention it. So it was already accepted by then that surgery couldn't be a precondition.

It probably seemed a non-issue when the GRA was sold as something for people who had either had surgery or were on the surgical pathway. Later social developments have undermined that.

And a certain Commissioner of the EHRC seemed to approve of it (see image attached)

https://x.com/akuareindorf/status/1924420172833534273

Irwin Mitchell are a reputable law firm though?

ChatGPT makes shit up. Not a reliable source in the slightest

The GLP letter before action revolves very much around the Workplace Regulations and toilets.

There was a very interesting article from a solicitor at Irwin Mitchell (a very big law firm) a couple of days ago that touched on just this issue. You can can read the whole article on their website here:

https://www.irwinmitchell.com/news-and-insights/expert-comment/post/102kb9l/do-retailers-have-to-provide-single-sex-toilets-and-changing-rooms-for-their-cust

Do retailers have to provide single sex toilets and changing rooms for their customers and staff?

TL;DR The same reasoning that led to the court saying sex is biological in the Equality Act would also lead to the same conclusion in other legislation as well.

The relevant bit talking about the Workplace Regs was near the bottom of the article:

"Sex in this context is not defined but is highly likely to mean biological sex. It's true to say that the Supreme Court didn't expressly consider these regulations in its judgment which focused exclusively on the interaction of the Gender Recognition Act 2004 and the Equality Act 2010. But, the way it reached its decision on that issue is instructive.

Generally, someone with a GRC changes their legal sex for ‘all purposes’ (s9(1)). However, that is subject to exceptions made by the Act or in any other act or subordinate legislation (s9(3)). The Supreme Court said someone's legal sex doesn't change for the purposes of other legislation if it would make that legislation incompatible or unworkable.

The 1992 Regulations were put in place to implement a 1989 EU Directive about health and safety and deal with 'propriety'. The Supreme Court recognised that females, as a biological sex class, have a health and safety interest in being separated from biological males and it's difficult to see how interpreting sex in the 1992 Regulations to include people with GRC's would not render their purpose unworkable for the same reasons the Court identified in respect of single and separate sex spaces in the Equality Act. Plus, it would put the Regulations at odds with the single and separate sex provisions in the Equality Act which would lead to absurd results - particularly if the same facilities are used by customers."

I think this was in the Goodwin case - that, if you're legislating for the rights of transsexuals, it's an abuse of human rights to expect them to be sterilised as a precondition for accessing those rights.

You've just contradicted me, so one of us is wrong. Goodwin was very early in the ECtHR transsexual rights, wasn't it, prior to the ruling about not limiting to post-"transition"? (The point at which they should have realised they were on a reductio ad absurdem path and backed up...)

I believe the GRA2004 non-requirement of surgery predated/anticipated the ECtHR ruling against another state.

As @Nameychangington said, that was more to do with granting a GRC.

In some countries (Germany for example) they used to require that anybody wanting a GRC had to get surgery first. The ECtHR said that wasn't reasonable and so the requirement for surgery was dropped.

However, the particular process for getting a GRC (or whatever it is called in each country) must still be gone through in order to get a GRC.

Rather disappointingly, Germany has gone the way that Scotland wanted to go.

Up until 2011, they required people to have surgery. After that, their law was similar to our GRA. But then in November of last year they brought in self ID. So people can now just go down to their local council office and self ID into the opposite sex.

I think it's that the government isn't allowed to gatekeep the PC of GR only to people who've had surgery, as in effect that's requiring people to give up their fertility, which is against ECHR.

But the issue then is that the original Goodwin judgment was at least in part informed by Goodwin having had surgery, and the ECtHR not being able to figure out who would be inconvenienced by men being declared female.

With both of those no longer holding - the Supreme Court judgment is now talking about how the claimed "rights" of men who haven't had surgery are impacting women - the original Goodwin judgment does appear to be obsolete.

I think this was in the Goodwin case - that, if you're legislating for the rights of transsexuals, it's an abuse of human rights to expect them to be sterilised as a precondition for accessing those rights.

This is why the PC of GR, as set out in the Equality Act, has a lot of language hinting that the person should be on a pathway to physical changes to their sex characteristics, which implies surgery, but doesn't outright say so.

I don't think it occurred to legislators in 2010 that, for the purposes of the PC of GR, changes to sex characteristics might just mean Dennis growing his hair long, putting on a dress and calling himself Denise.

I think it's that the government isn't allowed to gatekeep the PC of GR only to people who've had surgery, as in effect that's requiring people to give up their fertility, which is against ECHR.

Something on those lines,IANAL.

When I was writing the above post, I searched 'cub scouts' on Bing because I wanted to make sure that the term was still current.

The third result, after 'cub scouts' and 'cub scouts of America' was 'cub scouts in shorts'.... with, obviously, lots of images of little boys in shorts.

I found that disturbing.

When I did the same search on Google, 'cub scouts in shorts' didn't appear at all in the results.

I thought there was case law that it is against human rights law to discriminate between trans people who have and have not had surgery?

I agree. Anything that involves dividing things, or people, into a 'this' and a 'that' inevitably excludes the thises from the thats, and as long as there is a sensible reason for doing it, it's OK.
'Discrimination' is not always wrong, e.g. not letting 12 year olds drive cars, or 65 year olds join the cub scouts.

And if there is a clear line between 'this' and 'that' there will always be 'edge cases' that are anecdotally and personally negative, and that's unfortunate, but it is inevitable.

When I was a child I missed out on a scholarship which would have changed my future prospects immensely, because my parents' income was just a smidgeon above the cut-off point. We were infuriated, and devastated, and I didn't get the educational opportunities I might have had, but I was an edge case, and the rules were there in black and white.

Segregation on the basis of sex has been proved to be justifiable in certain contexts, and there are only two sexes. That's it. 'A hard no', as you rightly say SlackJawedDisbeliefXY.