Scottish census decision

[IsitM]

"The Scottish Court of Session has ruled in favour of the Scottish Government in the judicial review of guidance to accompany "the sex question” in the 2022 Scottish census

We are disappointed with the judgment and will be requesting an urgent appeal"

From FPFW

twitter.com/fairplaywomen/status/1494315619877109781?s=20&t=3b061zOq4q3XIBtz7MWV5A

I worry that if the Scottish government win this (especially if it's cos the judge says sex in law is a wishy-washy concept that can't be pinned down) then they will decide to appeal the ruling on representation on public boards, which said sex in law must be biological sex or that on a grc.

I am really hoping these legal cases piece together a picture of what the law means by 'sex' that's straight forward, basically biological sex, and not to be confused with gender identity or gender reassignment.

@Manderleyagain

I worry that if the Scottish government win this (especially if it's cos the judge says sex in law is a wishy-washy concept that can't be pinned down) then they will decide to appeal the ruling on representation on public boards, which said sex in law must be biological sex or that on a grc.

I am really hoping these legal cases piece together a picture of what the law means by 'sex' that's straight forward, basically biological sex, and not to be confused with gender identity or gender reassignment.

The FPFW case was based on the Equality Act that defines sex as male or female. They would need to argue male and female were also wishy-washy concepts.

To be fair I find it difficult to get my head round what gender reassignment actually means vs gender identity and how it applies in practice.

If gender reassignment essentially means transgender then is that not the same as identifying as transgender.

I think helpful posters have tried to explain in the past, I still don't get it.

That's the main issue, as the EHRC outlined. It's very woolly.

It used to be a highly medical process and so the reassignment was physical surgery etc.

At the same time that's basically sterilisation plus life long medical care and a huge deal.

Is there any live tweeting? I had a squizz at twitter and couldn't see anything.

"They would need to argue male and female were also wishy-washy concepts"

They did that, with bells on.

Their stance is effectively sex has always included gender ID within its definition, and if it didn't, then it does now as things have moved on, and if you think they haven't, where have you been? This is all settled, can't possibly think why you think otherwise.

I'm paraphrasing massively but that's the gist of some of their arguments.

One of the points made I think initially in the 1st round but it was mentioned again today - when Scotgov declined to amend the census act to specify sex to include gender identity, because the minister said at the time they didn't want to conflate sex with gender/gender ID, apparently that was because sex was already (settled) as conflating sex & gender & includes gender identity within the definition of sex.

And I hate to point this out, as I know it's been a means to push back on self ID, but the acceptance of legal sex as the settled agreed remit of the notion of sex, is ultimately what was used to undermine arguments that sex, for the sex Q in the census, was always and should continue to be considered biological sex. Because the concession was already made that legal sex was what they census Q was asking all along. Which since the GRA 2004 act includes male people who obtain the legal fiction that they have 'acquired' a sex different from that on their original birth certificate.

The point was made that sex isn't immutable because it was accepted that sex can be changed via a GRC.

The point was made that sex isn't immutable because it was accepted that sex can be changed via a GRC.

Stupid, unworkable vanity project law.

If FPFW lose can this be appealed to the Supreme Court?

I think it's highly unlikely. The letters are being sent out from 28th feb, time isn't on their side - unless they do what they did on the ONS case & carry on til they get it over turned at the Supreme Court as they have up until the date of the actual census (whenever that is).

As much as I'm very pessimistic, we'll not yet know 'til they make the decision so again IANAL so might not have picked up when/where key arguments have been made & accepted.

It's definitely squeaky bum time 😬

And I should add, I got kicked out before it finished. I also couldn't hear the judges when they were intervening so I've no idea what was said at those points.

I don't have the legal background or full picture from the whole session. I could have missed a killer point made. Here's hoping 🤞 😬

I hope it can be appealed if they lose. Though time must be running short. But idk if they would get permission to appeal?

The other thing is that the supreme court is (I think?) above England& Wales and Scotland. At the mo, the situation in England/Wales is that the high court looked at the census act and agreed sex meant legal sex (ie birth cert or grc). Scottish Court has looked at the same and said sex can include self id sex, or 'lived sex' or whatever. If that's tested at supreme court and Scottish government win, I presume it will uproot the high court's decision for E&W too.

But whatever, at least we would know.

I agree with those saying the gra made it possible to claim 'sex' means something other than your actual sex. I don't think that inevitably meant a Court would find that sex therefore means 'whatever sex a person says they are that day'. It turns out there is less common sense in the judiciary I than i knew.

Tensionwheels - i don't know if that was the case here, but sometimes all the arguments have actually been put in writing, and the oral stuff is just on certain points.
Fingers crossed!

One important consideration in seeking leave to appeal to the Supreme Court is that even though a decision from that court would come too late for the Scottish Census, if the case stops at the Inner Court of Session with a confirmation that sex includes gender identity, then that's established case law in Scotland and to challenge that in the future would probably require taking a case through the High Court and Appeal Court levels to get to the Supreme Court.

Having got this far it would be worth pushing to the end, so long as there is confidence that the Supreme Court would view sex as meaning material reality rather than someone's self-perceived identity.

I shouldn't despair yet. I thought the Harry Miller case against the College of Policing would fail watching the live stream. His lawyer semed useless to me and yet he won. They go through all the written evidence with a fine tooth comb which is why it generally takes so long to reach a judgement.

@Manderleyagain

Tensionwheels - i don't know if that was the case here, but sometimes all the arguments have actually been put in writing, and the oral stuff is just on certain points. Fingers crossed!

I'm hoping that's the case. It's not a given & my pessimism probably stems from frustration at some of what was said, on both sides, indicating some difficulty in grasping what they were even arguing (some accidental, some deliberate).

Some of the arguments were ridiculous so I'm hoping that's picked up - and I dearly wish someone would organise some factual & compassionate training of the judges & advocates on DSD's. 'Intersex' was mentioned & misunderstood/mis-used [in the 1st round, and again today] (even more ill-informed than the 1st time) they need training to stop the nonsense that's being spouted (at the behest of trans activists I need to add - they've sewn the seeds of confusion here).

I'm gobsmacked that they all apparently nodded in agreement on the 'intersex = either no sex or characteristics of both sexes' nonsense. It's pretty bad that they're all so misinformed & ignorant of what they're all using in a way to either clarify or confuse arguments being made.

@Imnobody4

I shouldn't despair yet. I thought the Harry Miller case against the College of Policing would fail watching the live stream. His lawyer semed useless to me and yet he won. They go through all the written evidence with a fine tooth comb which is why it generally takes so long to reach a judgement.

That's a good point. I remember listening or reading the tweets on that & it sounded as much of a disaster as todays sounded this morning.

FPFW did rally after lunch for the brief time he had to finish.

Just got to keep the 🤞 and hope for a good outcome.

When are we expecting the judgement?

I missed the end so not sure how that was left. Hopefully someone else will have the info on that.

Placemarking

@nauticant

One important consideration in seeking leave to appeal to the Supreme Court is that even though a decision from that court would come too late for the Scottish Census, if the case stops at the Inner Court of Session with a confirmation that sex includes gender identity, then that's established case law in Scotland and to challenge that in the future would probably require taking a case through the High Court and Appeal Court levels to get to the Supreme Court.

Having got this far it would be worth pushing to the end, so long as there is confidence that the Supreme Court would view sex as meaning material reality rather than someone's self-perceived identity.

Do you think they would be able to pursue an appeal even if it was too late for the census?

@Blessex

When are we expecting the judgement?

I think the Census opens on Monday so it'll have to be sharpish!

From FPFW's Twitter
Hearing over. Now we wait. Decision to be announced tomorrow

mobile.twitter.com/fairplaywomen/status/1496546116694953991

"Do you think they would be able to pursue an appeal even if it was too late for the census?"

They went ahead with the case Agatha ONS after the census opened - wasn't there something about the ONS actually bringing the date forward to try & out manoeuvre FPFW? There were trans people posting (and boasting) about completing the census before the judgement came in. So I'd say yes they could. But it'll come down to the judgement & reasons given for the decision, whatever it is. And FPFW's appetite to go further at more expense etc.

[quote GibbonsGoatsGibbons]From FPFW's Twitter
Hearing over. Now we wait. Decision to be announced tomorrow

mobile.twitter.com/fairplaywomen/status/1496546116694953991[/quote]
Crikey that's fast. 😬

If the judgement goes against us (women), perhaps we could get all our male allies to identify as women in the census? Get more provision for women? I'm not in Scotland, but have my fingers crossed for you....