For Women Scotland Judicial Review 2

[Signalbox]

For Women Scotland Judicial Review: mentioned today in the Times. I didn't realise that this was happening this week on 9th and 10th November according to FWS website...

forwomen.scot/01/09/2022/impact-of-second-judicial-review/

We have a petition for judicial review pending, averring that this revised guidance is not compliant with the court’s decision and is therefore unlawful. The Scottish Government has repeated its earlier error in law by incorporating transsexuals living as women (albeit now restricted to those who hold a GRC) into the definition of woman, thus conflating and confusing two protected characteristics. The Scottish Government has declined to remove the section referring to the GRA and have indicated that it is their understanding that a GRC changes a person’s sex for the purposes of the Equality Act. Whether they believe a person’s biological sex changes on receipt of a GRC or whether they now dispute that the Equality Act refers to biological sex remains to be seen.

Permission has been granted for the judicial review and the substantive hearing date has been set for 9th and 10th November 2022.

We believe this case puts the Committee in a very difficult position as, until such time as the court makes a ruling, the proper relationship between the GRA and the Equality Act cannot be understood, and nor can the consequences of any legislative reform of the GRA.

If the Scottish Government is correct that a person’s sex changes in the Equality Act with a GRC then it follows that the statement to Committee by Cabinet Secretary, Shona Robison, that the GRR Bill “does not redefine what a man or a woman is”, is incorrect. Clearly, if men who hold a GRC (transwomen) are included in the definition of woman (and women who hold a GRC (transmen) are excluded), then changing the circumstances under which a person is entitled to a GRC will also have the effect of changing the definition of woman.

The GRR Bill proposes a significant change to the eligibility criteria for a GRC and will include, for the first time, those without a medical diagnosis of gender dysphoria and those aged 16 and 17. The Scottish Government also estimates a tenfold increase in applications for a GRC. This diversification and expansion of GRC holders from the current situation will significantly change who is counted under the definition of woman.

Whether a person is defined as a man or a woman matters for the successful operation of the Equality Act across a broad range of provisions, including single-sex exceptions, equal pay claims and access to maternity rights, and we are concerned that this is underappreciated and poorly understood by the Scottish Government. It is, of course, vitally important because any action taken by the Scottish Parliament must be careful not to modify any of the protected characteristics, including the definition of woman, lest it strays into reserved matters.

The Scottish Government seems hopelessly confused and inconsistent when it comes to the definition of woman, with at least three different definitions currently in operation across various pieces of legislation and policy. Contrary to the position outlined above, it fully understood that sex was biological when SNP MSPs voted in favour of the Lamont amendment to substitute gender with sex in the Forensic Medical Services (Victims of Sexual Offences) Bill to ensure a request for a female medical examiner resulted in the provision of exactly that, and not a man with a GRC (transwoman).

At the other extreme, the Cabinet Secretary again contradicted the Scottish Government’s current position by asserting a GRC is not required for a man to fall under the definition of woman and access single-sex services for that sex, when she said to Parliament that “the 2010 Act does not apply exceptions specifically to toilets and changing rooms. Trans people can and do use those now, whether they have a GRC or not, and they have been using them for many years.” This fails to recognise the single-sex mandates in legislation relating to schools and workplaces as well as specific examples in the Equality Act Explanatory Notes – we have written separately to you about this matter.

A recent Scottish Government public consultation on the Review of Funding and Commissioning of Violence Against Women and Girls Services redefined a woman as “anyone who defines themselves as a woman”. Not only does this circular statement flagrantly disregard the Inner House ruling but it fails to recognise funding for women’s services can only be allocated via positive action measures in s158 of the Equality Act so must adhere to the protected characteristics. Our letters to both the review group and the Scottish Ministers asking for the consultation to be withdrawn and reissued with a correction have not received any response. We further note the Scottish Government only accepts applications for funding from individual women’s services on production of a LBTI inclusion policy that is transwomen inclusive. Again, this is not dependent on holding a GRC.

In summary, we believe the revised statutory guidance for the Gender Representation on Public Boards Act is unlawful. The Scottish Government believe otherwise and maintain a GRC changes a person’s sex for the purposes of the Equality Act. Not only does this decouple women’s biological sex from sex-specific provisions in the Equality Act, but it means reforming the GRA also carries a serious risk of intruding on reserved matters. The Scottish Government has a history of inconsistency and lack of understanding on both the definition of woman and the operation of the Equality Act. All of this leaves the Committee exposed, trying to make good law in the midst of a live court action, the outcome of which materially affects the reform.

Sorry, I managed to only copy and pasted the 2nd half of the blog Abitofalark so the OP is incomplete information. The first part of the blog was in relation to the first judicial review that was won on appeal by FWS. The guidance refers to the "revised statutory guidance for the Gender Representation on Public Boards Act" which FWS are saying is still not straightforwardly using the EA's definition.

...

“The meaning of “woman” for the purposes of the Act"

"2.12 There is no definition of “woman” set out in the Act with effect from 19 April 2022 following decisions of the Court of 18 February and 22 March 2022. Therefore “woman” in the Act has the meaning under section 11 and section 212(1) of the Equality Act 2010. In addition, in terms of section 9(1) of the Gender Recognition Act 2004, where a full gender recognition certificate has been issued to a person that their acquired gender is female, the person’s sex is that of a woman, and where a full gender recognition certificate has been issued to a person that their acquired gender is male, the person’s sex becomes that of a man.”

www.gov.scot/publications/gender-representation-public-boards-scotland-act-2018-statutory-guidance-2/pages/2/

The whole blog can be read here...

forwomen.scot/01/09/2022/impact-of-second-judicial-review/

gagarhrhrhgh..

Please can you tell us what was said?

I think that might just have been Tribunal Tweets comment, not actually mentioned in the tribunal? But I wasn't there, just going on the thread.

Yes, it is galling that people, mainly women, have had to crowd fund this, as we did previously.
Scottish Government lost that time , paid costs, which meant that the people of Scotland pay twice, as it were, for bad policies, appalling, highly suspect, pathetic political decisions by inept fools like Shona Robison, Fulton MacGregor, Karen Adam, Pam Duncan Glancy & Maggie Chapman to name just a few.

The Tribunal Tweets thread says:

KM [Karon Monaghan KC - Counsel for LGB Alliance]: FWS case - issue concerned some devolved matters inc provisions which allow scot gov to introduce quotas. This provided for women's representation. Provided that woman included woman w[ith the] pc [personal characteristic] of gender reassignment. Court said that they had to separate the two pc's because of definitions
KM: PC of sex means sex. Man (male of any age) woman (woman of any age). Provisions for women in this context are rooted in sex. 2018 act was not redefined. Woman in the act is biologically rooted and doesn't depend on gender reassignment
[MG [Michael Gibbon KC, Counsel for Mermaids] points out that Scot ruling is under review]

web.archive.org/web/20221108144526/threadreaderapp.com/thread/1589912824742281218.html

TribunalTweets are going to be live tweeting from 10am tomorrow.

Info about FWS's first judicial review win is here, along with a link to the full court ruling:
forwomen.scot/25/02/2022/we-won-scottish-government-redefinition-of-woman-is-unlawful/

This ruling was NOT appealed by the Scottish Govt, it was accepted in full. As part of the court order they had to remove the unlawful definition of woman from the statutory guidance for the pubic boards Act. This included all footnotes - one of which referred to GRCs. However, ScotGov chose to add the reference to GRCs to the Equality Act's definition of woman in the main body of the revised guidance.

FWS considered this not compliant with the court order. ScotGov thinks it is because it considers the Equality Act definition of woman includes biological males who possess a GRC. More details about the case here:
forwomen.scot/18/07/2022/judicial-review-2/

and it was covered in the Telegraph.

From the court roll:
FWS is represented by Balfour + Manson
Respondent ScotGov have their own Legal Dept, SGLD
Respondent EHRC, Glasgow, is represented by Drummond Miller

and there are two interveners who lodged written submissions only; they won't be participating in the substantive hearing tomorrow:
Equality Network, represented by Dentons
and LGB Alliance, represented by Gilson Gray.

Essentially, this is a case where the Scottish Govt accepts that provision for women, by definition excludes biological males (ruling in the first JR), but now argues the definition of women includes biological males. 🙃

It was mentioned when KM was going through all the case law. KM initially got it slightly wrong but then corrected herself. The judge confirmed it was taking place tomorrow.

Essentially, this is a case where the Scottish Govt accepts that provision for women, by definition excludes biological males (ruling in the first JR), but now argues the definition of women includes biological males.

They're so desperate aren't they for the definition of word woman to be inclusive of men. I wonder if FWS got awarded costs at the last JR? There really should be a hefty financial penalty when previous rulings are being so blatantly ignored.

Karon M mistakenly said in the LGB Alliance hearing today that the first FWS judicial review was under review/appeal. I think she was corrected but unfortunately, it ended up being a bit muddled.

I wonder if FWS got awarded costs at the last JR?

Yep. £147,500. And it's paying for the new case.
forwomen.scot/21/09/2022/judicial-review-finances/

Thank you BetsyM00

Oh brilliant that’s good to see.

Ah, I see. Thanks.

Good to know how the SNP are spending taxpayers’ money FFS. I hope this gets into the papers. What a nonsense. 😡

Thanks for that, Hoardasurass, Ah, I remember now reading a lot on here some time ago about the representation on public bodies and the review. It's dreadful that it's still going on even after winning the case.

Thanks for that, Signal Box. I remember now reading a lot of detail here about the original policy and the review. Need to reconnect and plunge back into the thicket of arguments and definitions to follow it into the next stage.

Just an aside & slightly off the topic, but worth listening to.
There is an irish reporter named Paddy O’ Gorman who has done a short podcast where he speaks to women in Ireland who were held in prison with trans identifying men.

Thank you FWS for all your hard work.

Thank you for the explanation. And I'm grateful as always to FWS for their dogged determination to see this through in court. It must be so stressful (and infuriating).

LGB Alliance have published their submission in support of FWS's case:
lgballiance.org.uk/fws-judicial-review-2-submission-of-support/

Thanks FWS, for all that you do. And LGBA for support.

Thanks BetsyM00 :)

Looks like @ tribunaltweets are tweeting from this account...

twitter.com/tribunaltweets/status/1590280827967279105

Due to begin at 10.00am before the Honourable Lady Haldane

Abbreviations

FWS: For Women Scotland
SG: Scottish Government
J: Judge Lady Haldane

Petitioner:
SM: Sindi Mules at Balfour + Manson solicitors for FWS
AN: Aidan O’Neill KC for FWS

Respondent:
SGLD: Scottish Government Legal Department

Other agent:
DM: Drummond Miller for EHRC

@ tribunaltweets

AN: the interventions by the LGBA is purely a legal issue before the court. I'm not going to go into anything they say. I will focus on Scottish ministers. the central issue of this courts is whether the obtaining a GRC means the PC of sex for the EA2010 is also changed

AN: the Gender representations scotland act 2018. We know in that judgement that the inner house made it clear that the extent of the PC in the EA is beyond the competence of the SG authorities to modify. so when we see EHRC say use the term 'legal sex' not biological sex in EA..

AN: that substitution required by the GRA 2004. so we have guidance by Scot Minister about what is meant by 'woman' and sex in the EA as a result of it's interaction with the GRA 2004. the SG are advising on an interpretation. is it correct? matter for the court

AN: This court is faced with this question with implications for Westminster statues across the UK. applies outside Scotland. against that background essential court approaches with background of how have we got here. I will take a day on knowing what the back ground is

AN: secondly. the SG has intro'd a bill to amend the GRA. significant change. I'm not going to cover but the court needs to be aware. PDF page 2585. the changes are summarised by the SG in their explanatory notes to the bill on PDF P2564. simply so that the court is aware

AN: We see in the explanatory notes to GRA bill is the removal of the req for an applicant to have had gender dysphoria(GD). (P2564 of the authorities - para 17) summary by SG ministers. removal of GD and req to have medical reports. the reduction from 18 yrs to 16 yrs

AN: Currently medical reports have to be obtained, that's being removed. applications to registrar Scotland. not refusing, simply granting. period of time reduced to 2 months. The AG reports annually the no. of applicants. The SG say they have no hard data on how many ppl have

sought a GRC under the current regime. Proposed bill includes reporting no.s of GRCs as a duty.

AN: it says the SG has little robust evidence of how many trans ppl in Scotland or characteristics(?) of trans population as a whole. they say based on other countries, apps will

AN: increase. They estimate, based on the limited info from similar countries, that GRC's will be 250 to 300 applications per year. but that's against estimate of 20 to 25 current applications

AN: the changes in the proposed GRA bill will lead to an increase of GRCs of at least 10 fold. Now all this anticipated increase in no. 10 fold, is being done in a manner that is legally blind. It is not known what impact on sex discriminations and sex under the EA

AN: That's because no one knows. so that's part of the background. Put in the whiteman case to clarify the law to allow parliamentarians to cast votes in a responsible manner. that's a proper constitutional approach. the answer to this question will affect that.

AN: depending on what this court decides. if the court upholds my argument that a GRC does not result in a change in sex for the purposes of the EA, it will mean that getting a GRC will have little if any legal implications as the law stands in 2022

AN: things have moved on a lot since GRA 2004. the issue then was that ppl who had married and post op transexuals their marriage was not recognised. back then the carve out was GRA to allow continuation of marriagesTribunal Tweets

AN: also matter of pensionable age. back then different ages for pensions 60 yo and 65 yo. now have same pension age. now have same sex marriage. things move on considerably since GRA 2004 law.

J: asks about GRC
AN: it certifies that one has gender reassignment. it can be said to be the states recognition by documentation that the individual has recognition of gender reassignment
J: what practical use is that?

AN: psychological comfort. Gender reassignment as a concept protected under EA2010. No need to squeeze in sex change into sex discrimination because the legislature has made comprehensive protection in relation to gender reassignment

J: You say the protected characteristic applies to those with GRC?
AN: yes but it can be wider. if my argument is upheld it will mean having a GRC will not change sex for the purposes of the EA2010 and single sex spaces. the preservation of SS spaces is done on the understanding

AN: of biological sex. safe spaces for women. that encompasses biological women who do not have a GRC.
SG interpretation runs a horse though that by adding a male with a GRC

AN: if the court finds against me, whenever EA2010 references sex, woman, man that has to be read as 'certificate' sex not biological sex. that means any positive action measures in favour of women, like systemic underrepresentation of women in the workforce, would have to

include any biological men who have got a GRC AND (this is the bit always lost) exclude women who get a GRC. this isn't about giving more rights. it means taking away rights afforded for the protections and obligations for any biological women if they take a GRC. I'll develop

J: it takes away protection of biological women with a GRC?
AN: yes they become 'men'
J: on your contention does that mean the person can still benefit from rights of bio women?

J: rights afforded by bio sex
AN: yes and obligations due to them. classic case is abortion act 1967 which determines termination of pregnancies. refers to any woman who is pregnant. If as is being said by the other side, definition means man with GRC and excludes woman with GRC

AN: there are rights and obligations
J: giving birth to a child, recorded as father and mother, appreciate context and issues you're flagging up
AN: Yes. we have example in case of Freddie McConnell who was bio female then obtained GRC. he than applied to human embryo

AN: authority and gave birth. Q should FM be registered as father or mother. one of the issues whether they had a licence to inseminate a legal man as it were.

J: issues like that are very complex. specified exception in 2004 act. there was a case before FM
J & AN recall cases

AN: it was more in passing that there were concerns noted. There's a 2003 case relating to toilets. this might take all day because the complexities are heavy. So that's one of the issues. what are the implications of this reading, not of men who take a GRC but women taking GRC

AN: FM is an exemplar of bio woman getting GRC and becoming according to SG a man then becoming pregnant. lots of maternity specific provisos in EA2010 for women. no concept of pregnant man

AN: looking at EHRC argument. the SG ministers approach to GRA reform was summed up in the phrase transwomen are women.
(FWS the definition of woman impinged upon which is a reserved matter.) we much less hear 'transmen are men'.

AN: Just as black women are women, to deny racist,

Just as gay women are women, to be homophobic,

Just as muslim women are women, to be islamophobic,

that's a parallelism. in effect a TW would be able to claim 'sex' discrimination. a hidden effect never accepted in any court