This extract is from a learned expert on Reddit. Note particularly his glumness about the "suicide option" at the end. Link to complete post at the end.
....Leaving aside the procedural matters, the key questions were:
Does the EA apply to prisons?
If so, how is the right of trans people not to be discriminated against due to having a PC of Gender Reassignment to be accommodated?
Does the interpretation give rise to an article 8 ECHR breach?
Does the interpretation give rise to arts 2&3 breaches relating to suicide?
On these points the court found:
Does the EA apply to prisons?
The court ruled the EA does apply. This is not surprising.
There is a lot of discussion about whether this counts as a public function for the purpose of the EA or supply of services.
The court finds it could count as either.
I am not going to dwell on this because there isn't much new here. FWS II applies- we know from the GLP case what that means.
And again, much the same reasoning is applied to determine that the SPS rules definition of male and female should match that of the EA as was used in GLP re the work regs. Again, not going to dwell on that.
This leads naturally on to:
If so, how is the right of trans people not to be discriminated against due to having a PC of Gender Reassignment to be accommodated?
The court found essentially that this is done by allowing continued access to medication and private ablutions within our ASAB facilities.
Hugely unsatisfactory imo.
The questions then turn to the human rights arguments:
Article 8
Goodwin was brought up, and dismissed as a narrow case:
In Goodwin and R (C) the issues with which the courts were concerned were the maintenance of government records and the retention of official data. The implementation of policies relating to such matters may well engage Article 8 rights, but there will be no direct impact on other individuals in respect of whom official records are maintained.
The remainder of the article 8 argument was also dismissed:
None of these cases establishes that trans women have a Convention right to accommodation in the women’s estate, or a right to be considered for accommodation in the women’s estate. Trans women have Article 8 rights, but respect for those rights does 61 not extend to an obligation to provide accommodation with women.
Such respect may well necessitate measures which can be, and are, taken within the men’s estate, including ensuring access to hormone treatment and maintaining privacy and dignity in showering arrangements. These provisions are set out in the Prisons Guidance.
Such measures do not involve any conflict with the protection of separate spaces. So far as accommodation is concerned, though, the relevance of the qualifications in Article 8(2) is immediately apparent.
Sex segregation in prisons is in accordance with law and is necessary, at least, for the protection of health and morals, and to protect the rights and freedoms of others, specifically women prisoners.
These are essentially reasons which support the maintenance of separate spaces in the context of the EA 2010, and as discussed in FWS 2.
This foreshadows a point I have raised previously with regard to the GLP appeal.
Recent caselaw has established that UK courts should no longer anticipate ECtHR rulings and so should be cautious when issuing declarations of incomparability where there is no direct precedence from Europe.
She goes on to cite this explicitly when referring to the art 2 and 3 arguments that holding trans people in ASAB prisons increases the risk of suicide and so breaches the convention:
Articles 2&3
In submitting that I should conclude that a Convention compliant reading of rule 126 requires construing its terms as permitting the accommodation of trans women in female prisons, the respondents are inviting the court to develop the law in relation to Convention rights beyond the limits of the Strasbourg case law. However, the domestic courts should not go further than they can be confident that the European court would go: Elan-Cane, paragraph 63. I cannot be confident that the European court would go so far as to recognise a Convention right for a trans prisoner to be accommodated in a prison for the opposite biological sex; no authority has been cited that would allow me to reach that conclusion.
However she does awkowledge ls that in extreme cases where there is a direct threat to life the SPS will need to consider exceptional measures:
Ultimately, the argument concerns the question of whether there can be any flexibility to allow for the truly exceptional case where, if accommodated in a prison in accordance with the trans prisoner’s biological sex, there is a threat to life or of harm that is so severe that it meets the Article 3 threshold. The first point is that it would be necessary to consider all possible means of addressing that threat, including means for which no provision is currently made.
That said, other dicta makes it clear that this should almost never include transfer to the female estate:
The existence of risk, though, does not necessitate an option, as a matter of policy, to accommodate trans women prisoners within the women’s estate. The women’s estate is not a neutral space; those accommodated within it are women who, as was submitted for the petitioner, have their own vulnerabilities in terms of poor mental health and risk of suicide.
So in practice, she is referencing third spaces.
TLDR- it's pretty bad. It addresses the core arguments the GLP are hoping to advance in their appeal and confirms that we are highly unlikely to get a remedy to FWSII from the domestic courts.
It is either going to have to come from parliament or Strasbourg.
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full post https://www.reddit.com/r/transgenderUK/comments/1u9z4j6/comment/oskm8eh/