HR Lawyer thinks a GRC creates "legal fact" and not "legal fiction"

[ConfessionsOfTeenageDramaQueen]

twitter.com/AdamWagner1/status/1207705431700840449?s=20

Hilarious and brilliant thread. But how can a flipping lawyer be entertaining this?

Best reply is from another lawyer: "Changing legal relationships is what law does, and one may then debate if, whether and to what extent the law should do so. Changing biological substance by words is the province of transubstantion, and that’s the realm of theology, not law."

*HR being human rights (not human resources)

I don't think he was arguing that the GRA changes biological reality. I think he was arguing that the GRA is not a legal fiction because it's designed to acknowledge a real situation. He is saying that legal fiction has a narrower meaning where the law is creating a situation which has no basis in reality.

I think he's trying to discuss the law of the case rather than make a TRA argument. He argues against a pretty fair legal summary which supports the judge's decision...rangeofreasonableresponses.com/2019/12/19/forstater-v-cgd-europe-what-the-tribunal-actually-found/...by saying:

I think that there are a few potential arguments against that - first, that disagreeing with a law isn't the same as denying it - and relatedly, second, that the difference between disagreeing and denying requires a journey from from belief to manifestation of belief

And third, where does it leave people with religious beliefs which in theory deny rights of homosexuals? That's a lot of people, could include some Muslims, Jews, Christians of various denominations. Isn't the right approach to protect the belief and worry about manifestations?

But sexual dimorphism is truth not a belief.

the law is creating a situation which has no basis in reality

... erm ...

Adoption is a well known legal.fiction.
The parents are still parents of an adopted child.
It's still a legal fiction. They aren't biological parents.

So a GRC is still a legal fiction in the same way.
The owner of a GRC isn't of the biological sex they claim.
Simple really.

His reasoning might seem strange to non-lawyers but he's basing it all on the Goodwin v UK case which was the one that forced the UK to create the GRA. The case was basically about whether it was legal for the UK to offer (via the NHS) reassignment surgery to transwomen but then was still treat them as men in terms of the law (specifically marriage was a big issue here as this was pre-equal marriage and civil partnerships)

The judgment is pretty terrible IMO. The judges say that it is possible to change sex and (paraphrasing here) "Reassignment surgery is very sophisticated nowadays. You can change everything apart from the chromosomes but who cares about chromosomes anyway?" They throw in a reference to intersex people for good measure.

If you think that Goodwin was right and logical, then it follows that the GRC just recognises that trans people have in fact changed their sex. If, on the other hand, you think Goodwin was a bonkers misstep then you'll be inclined to think that the GRA creates a legal fiction.

Goodwin judgment here, para 82 is the most annoying one: www.bailii.org/eu/cases/ECHR/2002/588.html

In my studies of law I'd often be reading 19th century cases and the one thing that became clear was that they were authorities because they were still well-founded and still made sense over a 100 years later.

As far as I can see from paragraph 82 of Goodwin, it's not every lasted 20 years before being self-evident garbage.

Yeah except Goodwin expected people to have surgery and that is not a requirement and definitely won’t be under self-ID.

Irregardless of whether someone has surfer though (which as pp point out isn't even a requirement of a GRC) the GRC is still a legal fiction - no one has actually changed sex. They've had surgery and/hormones. Their DNA etc is still male. So it's a legal fiction, not a legal fact which is very much what Adam is trying to argue.

*surgery not surfer

Well yeah. I’m just pointing out how dumb Adam’s argument is in response to a post above

the law is creating a situation which has no basis in reality... erm ...

Oh yeah. I was fully aware of the erm when I wrote that.

Not saying I agree with him, just that I didn't think he was defending the judgement.

I think the subject of adoption is an interesting parallel here.

Adoption creates a legal relationship between an adult and a child that reflects the relationship between biological parent and child.

To translate this into analogy, what Maya has done is argue that her belief is that an adoption certificate does not make you the biological parent of a child and that this belief is important for a number of reasons.

What the judge seems to have heard is that Maya is saying her belief is that an adoption certificate does not make you a parent (full stop) to the child, and that belief conflicts with human dignity and the rights of others.

He appears to have missed the crucial fact that the adoption certificate does not make you a biological parent; to translate back, that a GRC does not make you a biological woman.

Unless he thinks that a GRC does make someone a biological woman, which is troubling indeed.

To take this analogy further into the entire debate, what TRAs are arguing is that anyone should be able to legally adopt a child without any kind of gatekeeping, even if said child does not actually exist - - as people have a right to identify as a parent if they feel they are and it is a part of their identity.

Rad fems are arguing that this move would be disastrous because you just can't let anyone adopt a child, or let anyone identify as a parent to a child, even said child that doesn't exist because the real world implications are horrific.

That's Adam Wagner, Chair of Rights Info - which refuses to respond to Maya's complaints.

It also maintains that TWAW and that being a sex worker is exactly like being a midwife.

Did he declare an interest when talking about this on R4?

I think the subject of adoption is an interesting parallel here.

I think it's a fucking offensive parallel whenever the TRAs trot it out. Being a parent is what you do. Adoptive parents, foster parents, step parents are parents because of feeding, comforting, wiping up shit and vomit.

Wearing a dress does not make you a woman. I think there was some basis for the analogy when being transsexual involved full SRS and living in role- but it was only analogous with the old birth certificates (which were a legal fiction), not adoption itself.

To compare adoption to just identifying as trans is (for all the reasons PP says) ridiculous and gross.

being a sex worker is exactly like being a midwife.

Now that's one Christmas Special I'd watch, Sister Jenny Agutter and all.

I am an adopter and I dont think the parallel is fair. Our DS has an adoption certificate not a birth certificate.

Also adopters nowadays dont pretend to be biological parents. Our DS has known from an early age that he was not in my tummy etc etc.

In fact we are taught it would be incredibly damaging to pretend to be biological parents. We are taught he honest with our children even when the truth is incredibly hard.

He was the guy on Radio 4 the other day, wasn't he?

What's really good is that a couple of people on the thread mention the exemptions made for primogeniture. This illustrates, more than anything the truth that a GRA is a legal fiction. If it really meant that a person changed sex for all purposes (or whatever the phrase was that Judge Tayler used) then it would apply in primogeniture too.

My take on this is that the law is essentially about contracts and terms. Marriage contract for example.
So in law, if a GRC designates someone as a woman, then any relationship or interaction must be done as if the person is indeed a woman as that is in the legal terms of that person's legal personhood.
Obviously real life is messy and social interactions are not subject to legal contracts. But to a judge they have to operate within the parameters of the legal framework, unless they are the higher court able to create legal precedent.
Hence the "legal fact" comment.