Call defendants by gender they want, judges told

[Igneococcus]

Supposedly a "dynamic document" that is “admired and envied by judiciaries across the globe”:

www.thetimes.co.uk/article/ba69c2c0-668b-11ec-98df-0bb0132add1b?shareToken=f53fe2c462d32ddc9bd3e5d7faab1d4d

What a strange article. For one thing, this is old news. This guidance has been in use for a few years. For another, they have omitted the fact that at least one judge has already used this guidance to penalise the female 'survivor' of a TW's violence, in a court case where the TW was found guilty of attacking the woman.

A lot of comments about that case in the comments. The comments are often more useful than the articles.

I think the implication is that there are some revisions?
Did it previously at least acknowledge that there may be a clash of rights?

Revisions to the “equal treatment benchbook”, a 540-page guide from the Judicial College, have told judges: “There may be situations where the rights of a witness to refer to a trans person by pronouns matching their gender assigned at birth, or to otherwise reveal a person’s trans status, clash with the trans person’s right to privacy.”

....which doesn't make clear whether witnesses are allowed to be truthful or not, but at least may allow them to be.

I read very recently about the trial of the "woman" who kissed two young (primary school age) girls - apparently this individual also identifies as being five to seven years old.

The court referred to this individual as "she", i.e. respected the self-identified gender, but, as demonstrated by the act of putting the individual on trial as an adult, did not respect the self-identified age.

Why? What's the difference?

That's what I'd like to ask Lady Justice King.

After all, sometimes I can't quite believe how old I am, since I don't feel any different to when I did when I was...at least a decade younger. And l know plenty of other people who feel the same.

If it's updated so frequently there is no excuse for this guidance to remain in. Surely by now someone sane in the judiciary must have realised how vile this is and what the implications are? They have certainly been told repeatedly

Isn't the ETBB referred to in Alison Bailey's court case due next year? It's certainly come under a lot of criticism. Allowing someone to self-id is not law in this country and it could be compelled speech to require someone to use the terms. This was an excellent article about the ETBB policyexchange.org.uk/publication/prejudging-the-transgender-controversy/
and also some good comments in this thread
www.mumsnet.com/Talk/womens_rights/4291072-Policy-Exchange-Why-the-Equal-Treatment-Bench-Books-needs-urgent-revision

Maya has a case pending on this. She has repeatedly been refused FOI requests to understand who puts this guidance together (Robin Moira White would be a good guess) and who has been consulted (not women would be another good guess). She took it to court and i believe the case is still pending.
We should as part of our democracy know how the judiciary is being trained.

There may be situations where the rights of a witness to refer to a trans person by pronouns matching their gender assigned at birth, or to otherwise reveal a person’s trans status

Apologies if this is a bit off point... But I can't get my head around this gaslighting in plain sight.

We're expected to believe that referring to a male defendant in court (eg a male rapist - to use a recent example) as "he"...
"Reveals their trans status"??

Surely the only way anyone knows a male person is trans, is because they're forcing everyone to refer to them as "she".
Their trans status would be completely undisclosed and rightly irrelevant if they're referred to using correct sex based pronouns as a "he".

It's Alice through the bloody looking glass times a million going on here.

The idea that judges believe it's acceptable to receive confidential training from activist groups of self interested adults is outrageous. Yet, here we are.

@Linguini

There may be situations where the rights of a witness to refer to a trans person by pronouns matching their gender assigned at birth, or to otherwise reveal a person’s trans status

Apologies if this is a bit off point... But I can't get my head around this gaslighting in plain sight.

We're expected to believe that referring to a male defendant in court (eg a male rapist - to use a recent example) as "he"...
"Reveals their trans status"??

Surely the only way anyone knows a male person is trans, is because they're forcing everyone to refer to them as "she".
Their trans status would be completely undisclosed and rightly irrelevant if they're referred to using correct sex based pronouns as a "he".

It's Alice through the bloody looking glass times a million going on here.

You're absolutely right.

The pretence, of course, is that some trans women look so convincingly female that no one would know they were male unless someone misgendered them.

Apart from the fact that this is obviously not true, it is especially not true when the crime is rape or assault, and the victim knows perfectly well that they have been attacked by a man. This happened in Maria Maclachlan's case, of course - she was forced to refer to her attacker as "she" and the judge refused her compensation because she apparently did so with bad grace. Gaslighting to the nth degree.

Useful article and as ever the comments ratio is telling. Drip… drip… drip
(Although following JT’s excellent comment piece about goats, perhaps it should be head butts.).

Another thing about this guidance that makes no sense to me is that the judge can choose what she says, but the person giving evidence cannot. The person giving evidence is legally obliged to tell the truth about what she saw or experienced. If she saw a man, she saw a man. She did not see an 'inner essence'. Telling her to refer to him as if he was a woman is telling her to commit perjury.

I've not compared it to the previous edition but I think it may be an improvement.
(I think section 22 refers to exemptions in revealing trans identity in courts.)
It says:
There may be situations where the rights of a witness to refer to a trans person
by pronouns matching their gender assigned at birth, or to otherwise reveal a
person’s trans status, clash with the trans person’s right to privacy. It is
important to identify such potential difficulties in advance, preferably at a case
management stage, but otherwise at the outset of the hearing. A decision would
then have to be made regarding how to proceed, bearing in mind factors such
as:
• Whether the trans person’s trans identity is already a matter of public
knowledge.
• Whether the trans person has a GRC and if section 22 applies.
• The impact on the trans individual in terms of their willingness to participate
in legal proceedings if their trans status is at risk of being revealed.
• The impact on the trans person in their own life if their trans status is
revealed and potentially becomes public.
• The effect on the willingness of trans people to use the courts if they
perceive a risk of their trans identity being revealed when it is not relevant or
necessary.
• Why the witness is unwilling or unable to give evidence in a way which
maintains the trans person’s privacy. For example, a victim of domestic
abuse or sexual violence at the hands of a trans person may understandably
describe the alleged perpetrator and use pronouns consistent with their
gender assigned at birth because that is in accordance with the victim’s
experience and perception of the events. Artificial steps such as requiring a
victim to modify his/her language to disguise this risks interfering with his/her
ability to give evidence of a traumatic event.8
• Whether it is appropriate to make a form of restricted reporting order.
There will be occasions when, after these and any other relevant factors have
been considered, the interests of justice require that a witness or party may
refer to the trans person using their former pronouns or name.

8 All witnesses must be enabled to give their best evidence. YJCEA 1999 s16-17 and DAA 2021 s63- 64, in the context of special measures, recognise that victims of violent and sexual offences may have
difficulty giving evidence.

Could a witness get away with something like "At the time I perceived them to be a man, because of their size"; "While it was happening I believed them to be male"; etc?

That would obey the rules, wouldn't it?

It also refers to Maya's judgement though it's a bit mealy mouthed. Not sure what constitutes destroying trans rights. That could be interpreted pretty widely eg arguing trans prisoners shouldn't be in women's prisons.

^Gender-critical’ is a phrase which, broadly speaking, refers to a belief that sex
is immutable and binary, and that people cannot transition. Very often it is linked
to concerns that allowing the definition of women to include trans women would
make the concept of ‘women’ meaningless and undermine protection for
vulnerable women and girls. There is also often concern about what is seen as
potential encroachment into ‘safe spaces’. Feelings can run very strongly on
both sides of this debate. Clearly the ETBB takes no sides on this matter. The
ETBB’s concern is simply that judges have some understanding of the
perspectives of the variety of litigants and witnesses who appear before them.
Gender-critical beliefs (as long as they do not propose for example to destroy
the rights of trans people) are protected beliefs even if they might offend or
upset trans people (and others). However, holding a belief is different from
behaviour. As explained in the well-publicised Forstater case, ‘misgendering’ a
trans person on a particular occasion, gratuitously or otherwise, can amount to
unlawful harassment in arenas covered by the Equality Act 2010. ^

I read the relevant parts of the ETBB a year or so ago and I remember thinking that it didn't seem to allow for a trans person ever being a defendant - it was all about trans people as witnesses or as victims. But that may have been a misunderstanding of legal terms on my part, so I certainly never commented on it. Any more knowledgeable people about?

As far as passing goes, yes absolutely some trans people pass, though a higher proportion of women who have transitioned to live as men than men who have transitioned to live as women. A VERY high proportion present an appearance of mixed signals, very feminine plus very masculine, which is interestingly challenging for those of us with stereotyped assumptions to deal with.

The impact on the trans person in their own life if their trans status is
revealed and potentially becomes public

Of course, the obvious think to prevent one's trans status being revealed would be to refrain from taping women.

So the right of a person to give evidence and speak the truth as she understands it depends on the degree of trauma she has suffered?

Hmm. The victim of an assault by a male is allowed to use language that reflects what she has experienced, but a witness in the assault case is not allowed to use language that reflects what she has experienced.

Going off topic for a moment, for some reason I can't see the comments on The Times articles posted here. Is there anyone else who finds the same?

I wonder why it is and if there is a way around it. I would love to be able to read them. As I think someone mentioned, they are often the best part and give an insight into what other people are thinking.

This could come down to the Prosecution demanding that witnesses in VAWG and children cases are allowed to use the pronouns they are most comfortable with. I can't see how any judge could refuse.
It's a bigger question whether other court members should use preferred pronouns in these cases. It would be very odd if the defence questioned a witness using preferred pronouns for the defendent. That in itself could be destabilising for the witness, way beyond probing her evidence.

@JustcameoutGC

Maya has a case pending on this. She has repeatedly been refused FOI requests to understand who puts this guidance together (Robin Moira White would be a good guess) and who has been consulted (not women would be another good guess). She took it to court and i believe the case is still pending. We should as part of our democracy know how the judiciary is being trained.

The amount of obfuscation in the replies that Maya got very strongly implied that it was all incredibly fishy, didn't it? And Robin Moira White is a dickhead.

If the police work on the principle of self-id (in all cases it appears), then they are also working ahead of the law? Therefore when a defendant comes to court having committed rape, they will probably expect to be addressed as she, yet according to the ETBB, in cases of rape or DV for e.g. there would be occasions when birth sex was referred to.

Oh those tangled webs our Stonewall Champions league have woven and our legal systems had walked right on in and accepted, without question. When, just when, has our justice system ever done this?

Who's calling the shots? In who's name? Who are they accountable to? (a shortened version of Tony Benn's questions to the powerful in a democracy) I would say that many of the unelected are now making decisions that are against the wishes of the majority

@allAbitofalark I find if I open the Times articles in a cognito window I can see the comments - which are almost always much more revealing than the article!