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

Crikey

the most persecuted demographic in British society today.

who knew men had it so tough?

Translucent's take on the YouGov poll

'Unfortunately, the poll was conducted amid a wave of misinformation, particularly from our national human rights body (EHRC), politicians, and the media. This renders it irrelevant in the context of truth and justice.'

https://translucent.org.uk/sex-matters-survey-by-yougov/

@DrUptonsGardenGnome: I take your point that the interim update is amenable to judicial review.

When is guidance held to be unlawful? The Supreme Court held in R (on the application of A) (Appellant) v Secretary of State for the Home Department (Respondent) which GLP cites:

39 . The approach to be derived from Gillick is further supported by consideration of the role which policies are intended to play in the law. They constitute guidance issued as a matter of discretion by a public authority to assist in the performance of public duties. They are issued to promote practical objectives thought appropriate by the public authority. They come in many forms and may be more or less detailed and directive depending on what a public authority is seeking to achieve by issuing one. There is often no obligation in public law for an authority to promulgate any policy and there is no obligation, when it does promulgate a policy, for it to take the form of a detailed and comprehensive statement of the law in a particular area, equivalent to a textbook or the judgment of a court. Since there is no such obligation, there is no basis on which a court can strike down a policy which fails to meet that standard. The principled basis for intervention by a court is much narrower, as we have set out above.

40. There are further reasons which indicate that this is the appropriate standard. If the test were more demanding there would be a practical disincentive for public authorities to issue policy statements for fear that they might be drawn into litigation on the basis that they were not sufficiently detailed or comprehensive. This would be contrary to the public interest, since policies often serve useful functions in promoting good administration. Or public authorities might find themselves having to invest large sums on legal advice to produce textbook standard statements of the law which are not in fact required to achieve the practical objectives the authority might have in view. Also, if the test were of the nature for which Mr Southey contends, the courts would be drawn into reviewing and criticising the drafting of policies to an excessive degree. In effect they would have a revising role thrust upon them requiring them to produce elaborate statements of the law to deal with hypothetical cases which might arise within the scope of a policy. Such a role for the courts cannot be justified. Their resources ought not to be taken up on such an exercise and it would be contrary to the strong imperative that courts decide actual cases rather than address academic questions of law.

41. The test set out in Gillick is straightforward to apply. It calls for a comparison of what the relevant law requires and what a policy statement says regarding what a person should do. If the policy directs them to act in a way which contradicts the law it is unlawful. The courts are well placed to make a comparison of normative statements in the law and in the policy, as objectively construed. The test does not depend on a statistical analysis of the extent to which relevant actors might or might not fail to comply with their legal obligations: see also our judgment in BF (Eritrea).

So in respect of the interim guidance, the test the GLP has to meet is to show the guidance directs an employer to act in a way which is unlawful. The guidance doesn't need to be a complete or accurate statement of the law in order to stand.

The only part of the guidance about which controversy over the legality of compliance by an employer could exist is whether it's lawful to prevent trans-identifying people to use the toilet of their identified gender. This is all being hung on the hook of the meaning of men and women in the Workplace Regulations - GLP arguing those words must be filtered through the Gender Recognition Act. The Workplace Regulations stipulate that sanitary conveniences are not suitable unless (among other things) “separate rooms containing conveniences are provided for men and women". What is meant by 'provide'? Is it enough under the regulations to simply make sure two sets of toilets exist and are functional? Or is it necessary to impose at least a basic control over who uses which? GLP seems to argue that correct policing is required as part of provision, and wrong policing amounts to a crime of "failing to provide". Given that it is open for the court to follow the same line that it used in FWS, that to apply the GRA to the Workplace Regulations would render them "incoherent or unworkable" vis a vis the protections in the Equality Act 2010, and so reverse GLP's chosen meaning of correct vs. incorrect policing, that argument could backfire on them.

Regarding the request for a declaration of incompatibility on human rights grounds - as Forstater pointed out, article 8 rights are not unfettered, and any of the reasons listed in 8(2) can be cause to infringe on the human rights, including "the protection of the rights and freedoms of others."

Thoughts?

Jolyon saw an early story on the Yougov poll showing the public agree with the sumpreme court that biology is real and gets over excited. As usual he goes crazy with it. Sex Matters calls him out.

Maybe we need to run a book on when JM completely melts down.

Sex Matters

Fact check: No, the media has not leaked a Sex Matters’ “press release” to Jolyon.

For one thing, there was no press release 🤷‍♀️

PA Media put their own copy out as a wire story under embargo yesterday morning, which would have been sent to every UK news outlet: from the national newspapers and broadcasters to the smallest village gazettes right across the country.

Looking at coverage today, you’ll see it published widely across these outlets once the embargo was lifted at midnight.

So Jolyon Maugham simply had early sight of an article written by PA Media.

Any way we can add numbers to that pile of complaints?

Seems various people are reporting GLP and Jolyon for fraudulent behaviour and undermining the rule of law.

Simon Myerson KC 🎗️

You haven’t started legal proceedings. You’ve sent a letter BEFORE action.
You’re asking for money on a false basis.
You say you’ve published your letter “in the interests of transparency”, but you haven’t published your legal advice.
You’re lying about being transparent.

Barbara Rich

Jolyon Maugham KC, a man who has auctioned invitations to dinner with himself for charity, delegitimises the judgment of the UK Supreme Court with his “to please their dinner party friends” slur. In doing so he gives wings to outright conspiracy theories about judicial corruption

The legal advice behind the pre-action letter?

Assuming it isn’t written with crayon, it probably says something like Yes Jolyon, of course Jolyon, anything you say Jolyon.

You can get a judicial review of any body exercising a public function (broadly speaking). The EHRC would fall into that category. That GLP has at least got that right.

As to the rest, I suppose the claim could come under the head of illegality, on the basis that the EHRC has misinterpreted/misapplied the ruling in FWS in their guidance. They have to do it now because once it’s finalised and approved by Parliament the courts are very unlikely to touch it.

That said, I think their entire argument about the workplace toilet regs (sorry, can’t remember their actual name) not being covered by the FWS approach to the meaning of “sex” flounders on cl 27, sch 3 of the Equality Act which deals with the provision of single sex services (and the conditions for these being legal notwithstanding the prohibition on sex discrimination in the Act). The Equality Act can’t make direct provision for every single sex service so it must be taken to govern the understanding in other legislation. In addition, regulations are a subordinate form of legislation to Acts so it would make a nonsense of the system if the approach to the meaning of sex which governs the Equality Act could be sidestepped by a regulation.

I’d love to see the legal advice that’s behind this pre-action letter.

<faints on the floor with admiration>

thanks Akua, Mike, or Ben or whoever you are

i had to read your post 5 times, i could barely get through the letter leave alone take it apart so magnificently.

I read through the letter. It looks like performative lawyering, aka playing the gallery.

If you boil it down, it says "we think you're wrong, withdraw the interim advice etc. or else."

The "or else" is the important bit, and there isn't much of it. The letter mentions: "The Interim Update is thereby an unlawful statement of policy or guidance applying the principles in R (on the application of A) v Secretary of State for the Home Department) [2021] UKSC 37, [2021] 1 WLR 3931 and Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. The Claimants will seek a declaration to that effect. "

Both of those cases are easily distinguishable from this situation.

Other than that - the phrase "judicial review" is mentioned, but only on the first page. Unless I'm mistaken nowhere does it actually say GLP will ask for a judicial review.

In any case a judicial review is applicable to a government decision, which this "interim update" isn't. It's a claim that a decision (which this, again, isn't) hasn't been reached by the correct process. A judicial review isn't appropriate if someone thinks a decision is wrong. But in any case there's no decision here to review. I suspect that GLP knows that.

On the subject of codes of practice:

The EHRC is a creature of statute, created by the Equality Act 2006. Under that Act, the Commission can, or in some cases must, issue codes of practice (s.14).

A code of practice shall shall contain provision designed—
(a)to ensure or facilitate compliance with the Equality Act 2010 or an enactment made under that Act or, (b)to promote equality of opportunity.
...
"(6)Before issuing a code under this section the Commission shall—
(a)publish proposals, and (b)consult such persons as it thinks appropriate."

Note: the choice of whom to consult with is entirely at the discretion of the Commission.

Before issuing a code, the Commission has to submit a draft to the Home Secretary. If the Home Secretary approves the draft, they lay a copy before Parliament which has 40 days to pass a resolution disapproving the draft and if that doesn't happen the code goes into force.

Once that happens it has the imprimatur of Parliament. A court will not overturn something that was approved by Parliament.

Cherry picked their trans women for that video didn't they?

Mmn. Would be so easy to do the same with the opposite bias: the court pictures line up alone would do it.

But even the really pretty men are still men, and women are entitled to men-free spaces. That this fucks men off is irrelevant, unless you're a raging misogynist who thinks entitlement to female biology is a birthright of males.

In which case wtf is all the stuff about changing sex/more than two sexes about?

I'd say make it make sense but all the clownfish/sex/chromosome/it's complicated burble is only ever to force the submission of women to men using them in their spaces. There is never anything more than this.

There is no human right anywhere for men to have access to non consenting women. That's an incel fantasy.

It also doesn't matter how many sad men you line up to look tragic and have problems, women still have rights in law. That men's feelings should destroy inconvenient women's rights is another incel fantasy.

Cherry picked their trans women for that video didn't they?

Bit hypocritical of GLP really to decide who does and does not get to speak given their whole complaint is that trans people weren't heard by the SC.

I urge the GLP to do the right thing and represent the full diversity of trans women.

Perhaps someone should help them regain balance by projecting publicly available footage of how some trans women behave at feminist events or the statements some trans thought leaders have made about what it is to be a woman.

An intersex claimant will also require the minister and the EHRC to explain what lavatories these people should use.

If they can't use male or female because they are some kind of 'other' sex, what facilities were they using before the SC ruling?

Am now picturing Jolyon as Rick Moranis in Spaceballs

Or in "Honey, I transed Shrunk the Kids"

Go us!

Am now picturing Jolyon as Rick Moranis in Spaceballs

"The Supreme Court isn't senior enough - we have to go to the Ludicrous Court"

I really want to know what court is going to hear a case where the respondent is the supreme court

Interested to see that the Good Law Project are fundraising is to:
“challenge the Supreme Court’s judgment on trans rights”

But in the details they say:
“legal case against equalities minister, Bridget Phillipson”

The text isn’t really clear about what specific legal issues are being contested other than opposing the acknowledgement of biological sex in law - because that causes “anguish” for trans people. They are repeating the assertion that the SC didn’t hear from any trans people (despite trans people have an entire government represent their case). And the pre-action letter is all about workplace toilets for those with a GRC - which isn’t spelled out on the funding page (and tbh is bloody hard work trying to figure that out from the letter itself - has obfuscation been used tactically to hide that they’re not advocating for self ID?)

Thanks, that’s interesting. But the letter and its signatories are real. I’ll ask MNHQ to remove the Google link but keep the criticism of it from Carole Hooven.

Given that a lot of TRAs do not appear to be gainfully employed (or employable), where is all this money coming from?

The OP was a troll. See the screenshot on the Site Stuff link below.
Be careful - apparently if you click on a google document and have a google account, the creator of the document can see your details. Given how dangerous to women and children some transactivists are, women need to be cautious in terms of their internet security.

https://www.mumsnet.com/talk/site_stuff/5336710-google-docs-in-troll-posts

Surely Jolly thinks that he's the wisest person he knows?

Well the GLP stunts are in our interest. Failing to challenge the judgement successfully will only strengthen it. Popcorn futures are bright too.

Translucent is also launching some kind of legal challenge against the EHRC for bias only they are using decent lawyers Leigh Day who have won a lot of human rights cases and they are also trying to crowdfund. I don't think they will get anywhere dramatic, but they have way more chance than the GLP does simply by using competent lawyers and not going after the Supreme Court.

The GLP is great at publicity stunts so they are getting whatever cash they can which could get spent in worse ways. The Translucent fund started May 15 and has yet to reach 4000.

I’m torn between thinking JM is doing our job for us and wishing the media would just ignore him.

As for which toilet people with DSDs should use, that would be the correct one for their sex.

I don’t understand why that thread was deleted. The letter is genuine and the OP was critical of it. From memory it was someone else other than the OP talking about different accounts but I can’t quite remember.

And Carole Hooven has tweeted about how one of its signatories has previously written about how sex is binary, demonstrating that people sign this sort of thing out of fear of being perceived the wrong way:

https://x.com/hoovlet/status/1923775918150930869