Question for any lawyers reading

[LemonJello]

This is a question regarding the proposed changes to legislation which would see ‘gender identity’ become a protected characteristic.

Is there any other law, passed at any time and in any country in the world, which enshrines individual subjective belief over shared material reality and understanding?

If there is, what was is and what were the implications/ cases that resulted? (Maybe creationism being taught in schools? I don’t know)

I’m also interested in the precedent that this may set. Not in terms of obvious things like ‘trans age’, although those are worrying, but other possibilities that we haven’t thought about yet. Would this law set a precedent for things like that? What legal arguement would you use against age identity if gender identity is recognised?

Thank you

Yes but religion is recognised as a belief, and the right to hold that belief is protected. The manifestation of the belief is only accepted to a point, so the holders of that belief are forbidden to discriminate against anyone else based on that belief for example.

The manifestation of race/ethnicity is usually based on country of origin and skin colour. So everyone has a shared understanding of what those things are/ mean.

As I understand it, other protected wotsits are based on you discriminating against someone based on either their sex/sexual orientation etc of your perception of that. So, for something to be homophobic, you don't have to first prove that the supposed victim is gay. Whereas as far as TRAs would have it, if John from accounts turns up in a dress and now wants you to call him Samantha, and treat him like one of the girls -- you would be required to suddenly start treating him differently. How does my behaviour towards someone be okay one day and not the next based on what has changed in between their own perception of themselves and their supposed disclosure of that fact to me. And even more confusing if John didn't dress differently, or name change, or shave off his beard, just announced that he is now a woman...............If your behaviour changes because of that declaration, isn't that actually sexism (if you believe that he is a woman). If someone declared any other personal belief (like they'd become a muslim) and you then started treating them differently because of that, then that would problematic, surely?
Gender presentation, I can see how you can have a meaningful anti-discrimination law based on that, but self-declared identity? Always ends up descending into sexism, frankly.

It could be remarkably handy when arguing cases for people seeking asylum: rather than going to the difficulty of showing (e.g) that my client who has been acting as an interpreter for the American forces in Afghanistan is now at risk of being killed by the Taliban, I can just get him to declare that he is in fact a woman and would be at risk of persecution if returned to Afghanistan as (s)he is a lesbian.

Every cloud has a silver lining!

Sorry, I know that didn't directly answer your question. It is an interesting one and I will ponder and get back to you.

Except that (rant ahead) as I understand it, sex based oppression can't be used as grounds for an asylum application. So even if you can demonstrate that you risk having your genitals lopped off with a rusty knife or being stoned to death for adultery, I don't think it's grounds for claiming asylum, because asylum is about manly forms of being oppressed like one's political beliefs.

But it's an interesting one isn't it? John in accounts is a bit of a groper, knows complaints are about to reach HR, comes in and announces she's Jessica now. Because according to self ID laws, John would have every much of a claim to be Jessica as Georgina who was formerly George, and has gone through the process of applying for a GRA and presenting as a woman for two years and has genuine dysphoria and no ulterior motive. (NB, not saying this is a likely scenario - just that it's one which the proposed laws on self ID would permit. Under self ID I can't see that there would be any legal distinction between genuine Georgina and chancer Jessica. If a law has absurd consequences it shouldn't make it onto the statute books.)

How would it work in a criminal trial if a rape victim refused to refer to her rapist as 'she' , if said rapist identified as female ir even had a GRC?
Could the law conveniently ignore the fact that a penis is required for rape and a penis belongs to a male body? Would a lawyer be able to successfully argue on the basis of biological reality and if not, why not?
I know that a Liverpool echo reporter said he was instructed in court to report on a rapist as female, which beggars belief.

I have wondered if there is some legal case to be made that enforcing "gender identity" as a protected characteristic is the same as compelling a religious belief. It would take a test case - if we ever got to the situation where misgendering was criminalised as it has been elsewhere? If the GRA reforms go through and a service is determined to maintain single sex provision? - but it could surely be argued that as there is no scientific evidence for innate gender identity, indeed that all the evidence says there is no such thing, it is equivalent to a religious belief and a secular state cannot enforce it?

Isn't there a clash in 'sex as a protected characteristic' and 'gender change/trans as a protected characteristic'?
E.g. A job/bursary/place etc ring fenced for a women allocated to a trans-woman? It is now going to someone of the female sex. Is this legal?

*not going

I thought FGM could be used to found an asylum claim

I think there must be lots of knock-on effects on other laws/policies which refer to sex. E.g. I can't imagine the Catholic church being overjoyed at a trans man applying to be a priest.

Hopefully some work is going on to identify all the potential consequences and then drop the proposed legislation

Prickly "John in accounts is a bit of a groper, knows complaints are about to reach HR, comes in and announces she's Jessica now. Because according to self ID laws, John would have every much of a claim to be Jessica as Georgina who was formerly George, and has gone through the process of applying for a GRA and presenting as a woman for two years and has genuine dysphoria and no ulterior motive."

ah, but why would this make a difference? The allegations relate to when he was John. Wouldn't this be like Davina Ayrton - still had to be tried for committing an act of rape as a man?

I may be misremembering, Aridane, but I thought I'd read a case recently where a woman was facing deportation even though she was sure that her relatives would subject her to FGM when she was sent back to her home country. I think the Home Office argued that since it was her relatives she was in fear of, not the state, there was no grounds for asylum.

More generally, as a matter of "natural justice", I would have thought on any normal definition of political oppression, the entire female population of Saudi Arabia would have grounds for asylum because they're denied the vote - but again, I can't imagine anyone getting that one past the home office.

"ah, but why would this make a difference? The allegations relate to when he was John. Wouldn't this be like Davina Ayrton - still had to be tried for committing an act of rape as a man?"
But then we had the case of a convicted rapist who was on the run, and Crimewatch (and everyone else) got rather confused:
www.thenorthernecho.co.uk/news/15161593.Darlington_fugitive_transgender_rapist_handed_extra_jail_time/
I see the judge called them Lisa, but lawyers Craig. And the fuckettey fuck is that I just called a convicted multiple rapist 'them' because the 'you must not mis-gender or you'll get into trouble at work' thing has got inside my head.
Very glad the bastard got 14 years, wish he'd got more! And now we have to wait and see if he applies to serve it in a womens prison I guess..............

(Some news stories referred to him as 'woman dressed as man', so bloody amazing that anyone figured out WTF was going on to actually report the bastard!). This is a REAL case, it matters that we should know what we are talking about, and in this case, I think it was clear that we didn't. Convicted rapist uses 'fluid' identity to try and avoid capture???

SweetGrapes

No clash. A GRC changes legal sex.

"Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman)."

www.legislation.gov.uk/ukpga/2004/7/crossheading/consequences-of-issue-of-gender-recognition-certificate-etc

A GRC changes legal sex.

Except where it really matters, primogeniture!

'The fact that a person's gender has become the acquired gender under this Act (a) does not affect the descent of any peerage or dignity or title of honour, and (b) does not affect the devolution of any property.'

Legal sex is not biological sex. Rape crisis run separate groups for women and men for biological reasons, not ideological ones.
There is a clash between biology and ideology, and there will have to be legal test cases for each situation. Its ridiculous.

SomeDyke, sorry if I misunderstood

but the guy from that article was tried for the crime he committed - he couldn't just get out of being tried by changing gender, which is what I thought the pp above was saying about John in accounts?

Even if self ID is recognised, why would it change what someone has done in the past? Their actions still took place.

Even if self ID is recognised, why would it change what someone has done in the past? Their actions still took place.

Unless a murder was carried out by a man, who then legally changed to a women - with all his previous records sealed, including police files with his DNA records. And then when the police try to match a blood sample found at the murder scene with DNA records, no match can be made - and the DNA sample indicates they should be looking for a man.

Years pass, murderer is arrested for another crime and DNA sample is taken as a matter of routine. Oh look, we've just found a murderer - one that could have been found years earlier had it not been for trans data protection laws.

I can't find full details of the particular case I have in mind, but I'm pretty sure this scenario has already happened.

Well thistle dew you can't ethically "just get him to declare" it if it's not genuine and the tribunal would have to decide whether or not credible so not done deal at all but appreciate the tongue in cheek point.

prickly persecution based on membership of particular social group can cover violence directed at women such as your describe i.e. FGM and treatment of divorced women. But yes if relying on political opinion not PSG as basis for persecution then it would be easier (Nb not easy!) to prove on active participation and not for example the support roles some women in some countries might typically provide for opposition group - but it's also true it's open to the solicitor to argue this and I've seen it done.

Remember as well that proving persecution on particular ground is only part of the test for refugee status - you then need to show danger ongoing, that the state can't protect you from said persecution (assuming it's not the state persecuting) and that you can't internally relocate to avoid the danger. So there are many hurdles to meet even if get over first one.

That said - asylum is only part of protection based leave that a person can apply for - could base it on other serious harm or try under ECHR for example due to risk of torture or degrading or inhuman treatment or punishment.

Although uphill struggle for most people on all bases in this area of law - wouldn't be easy street for anyone to rely on this.

Sex based persecution definitely can form the basis for an asylum claim! FGM is absolutely part of this and there are women and girls in the UK now who have refugee status because of that.

In cases where a woman fears FGM on return and has been unsuccessful in her claim, it'll be because either they didn't believe her, they thought she could get the protection of the authorities in her home country or they thought she could relocate elsewhere in her home country to avoid it. But there's specific case law allowing refugee status for those in fear of FGM in certain countries. The Gambia is one. I had a client from there.

I think people also get confused sometimes because sex isn't one of the grounds in the Refugee Convention. It's race, religion, nationality, politics or membership of particular social group. But women are capable of constituting a particular social group.

It's also true that you can be persecuted for a trait you don't actually hold, so eg in theory you could be homophobic and still be a refugee because you were at risk of homophobic persecution yourself. So I guess in theory if you pretended to be a trans woman and weren't believed, but you could show that you would be thought of as one and persecuted as a lesbian when you got back, that could arguably be a case! Hugely difficult to prove though.

Whereas as far as TRAs would have it, if John from accounts turns up in a dress and now wants you to call him Samantha, and treat him like one of the girls -- you would be required to suddenly start treating him differently. How does my behaviour towards someone be okay one day and not the next based on what has changed in between their own perception of themselves and their supposed disclosure of that fact to me

This whole scenario is flawed. How do you treat an employee or a colleague as "one of the girls"?

What behaviour in a workplace would have to be changed? If one of my assistants decides they are trans there is absolutely nothing I would need to change in the way I, or frankly anyone else in my office, would to continue working with that person

If someone declared any other personal belief (like they'd become a muslim) and you then started treating them differently because of that, then that would problematic, surely?

This is an extreme example but I know someone who had a desperately useless trainee who happened to be Muslim. He used to make a big fuss that he was discriminated against if office nights out were held anywhere serving alcohol. So I suppose someone who previously had no difficulty with alcohol could convert to Islam and take the huff at the next office party.

Since you are calling lawyers, can I ask two questions. I hope you don't mind me butting in, but they've been bothering me.

Firstly, this reissuing of birth certificates - does that happen under any other situations? I'm thinking of adoption, for example, where children are issued a separate, adoption, certificate listing their adoptive parents, while their original birth certificate is sealed for a set amount of time (country dependent, I think). Also anyone who changes name by deed poll - they don't change their birth certificate do they?

Secondly, the disappearance of birth name/sex from google. If a criminal changes his or her name in "normal" circumstances, google and all newspaper reports still refer to the crimes committed under the original name, with updates as appropriate. With gender reassignment, use of the old name is "deadnaming" and so it's all changed.

This rewriting of history is very odd. I know, for example, that it is illegal (and immoral) to issue a birth certificate listing adoptive parents as birth parents (something that used to be done, under the radar, in the past). Why is that so wrong, but changing gender is ok?

Maryz- I read up about birth certificates. From what I understand the original birth cert stays on file in a register, and any changes are noted in the margin. A new cert can be issued (adding fathers name, correcting spelling etc) and it may also have a note in the margin to indicate that it has been altered. So any gender changes will result in a reissued certificate, but the original is still retained. As far as I understand.