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RC : it's considerable weight and need to look for more than sex can only mean bio sex. That's simply to say, don't want to slogan myself, but what is it about EA that confines sex to bio sex as AN stated.
RC: [refs case] para 15 of my argument. We also had this convo about general laws. Specific provision is made in another enactment bug presumption is of no assistance where enactment in Q give diff purposes or focus, even if aims overlap.
RC: my sub supported by [cites Cusack case] and [Lord Newburger].
No need to turn up but important to look at purpose of GRA and EA. GrA propose is to provide GR process and if that's undergone what is the effect? EA purpose is a general equality measure and to make
RC: comprehensive provision against discrim (missed) It has nothing to do with acquisition of gender (missed) Neither statute is less general than the other, they're quite simply separate statutes
RC: At this stage, I ask Judge to turn up GRA, and section 9, just lost my paper, sorry, page 123 in bundle. We've looked at 9.1. 9.2 does not affect things before cert but does operate when cert issued
RC: sub section 1 is subject to any subordinate legislation. Staying with GRA we can see subject of discussion of FM case. Page 1129. [Reads 'does not affect status mother or father of a child']
RC: page 1132. You'll see section 19 has been repealed but was provision re sporting activities now addressed by EA , and section 20 there's exception for gender specific offences.
RC: look at FM case again..
J: you've made this point already but if doubt about it it's been repealed by EA. Confirms they were well aware
RC: AN said people such as FM would be excluded from certain services
J: Yes that was AN's line.
RC: looking at FM situ. Page 210 in bundle. Para 6 of courts opinion and can see some of the treatment FM had been prescribed [reads about FM and preganancy]. He was registered as M for male but clinic was clearly aware and not denied services.
RC: may be two Qs from FM situ, was it appropriate? and second, whether GRC properly obtained but neither Q is a matter for this court. It is possible for someone like FM to obtain the services they may require.
RC: they demonstrate the GRA and EA are capable of working together to ensure nobody is excluded unjustifiably from the protections from which would otherwise be available but which would be removed due to GRA. Nor would anyone unjustifiably be included
RC: maybe worth looking at AN's examples. I dare say there are other examples found in EA. First point AN took you to was section 17 of EA, page 1232 of joint bundle.
RC: my sub re this provision is that the purpose of protection here is because of the pregnancy. If pregnant and if as a result one suffers discrim you will be able to use section 17. It is the fact of the pregnancy which leads to entitlement to protection.
RC: section 12 re status of mother operates and also in work cases. Protections afforded in sections 18, is not because they're a woman, it's because someone is pregnant. Many women who cannot or choose not to have children.
RC: it's the pregnancy that gives rise to protection and may lead to discrimination.
J: it says pregnant woman and does introduce the descriptor but you say nevertheless the protections arise from pregnancy not gender or sex?
RC: perfectly reasonable to say yes
RC: (missed) next provisions were paras 26 and 27 of schedule 3, page 1448. Before we look I'd invite J to scroll down and look at para 28, page 1449. GR [reads 'if conduct in question is proportionate means for legitimate aim']
RC: we looked at provisions of SSS yesterday. My sub re argument against me and the idea that the construction the ministers make re EA and exusions, is to those effect: a person with the acquired male gender like FM would be automatically
RC: excluded as belonging to male sex but in principle that a person would be included in any SSS for men and to similar effect a person with acquired female gender would I
principle be included in SSS for women.
RC: Insofar as a person with acquired female or male gender felt to be excluded on basis that she or he was not 'bio man/woman' such a person would be protected by GR in para 28, that the exclusionary conduct in question is proportionate means for achieving legitimate aim.
RC: The assessment of proportionality would be impact of exclusion, and individual being excluded and vonsideration of alternative provision. Eg. Hospital/labour ward, if you're going to exclude FM from labour ward his waters having broken, he may be given single room.
RC: Point I make is through the lens of para 28 it's perfectly possible to operate sections 26 and 27. Person who would be complaining is person being excluded and that may be or not justified.
RC: There's nothing which offends the EA provided the treatment with PC is justifiable and fair and no unlawful discrim. Yes you can exclude but have to justify exclusion. We're providing service to individuals.
J: and forensic examinations?
RC: will come on to that.
RC: Sub against me was that the EA provisions, go against the grain that conflates bio sex and GR. There's no conflation.
The provisions by Petitioner do not lead to conclusion that sex under EA can only and for all times, its said (only and always) can only mean sex at birth.
RC: They can be worked out perfectly sensibly. (Missed)
As a matter of law an acquired gender results in acquired sex for all purposes and a person's sex can be changed as matter of law. Those exeptions support proposition that section 9 has been repealed.
RC: No inconsistencies between two statutes which have diff purposes and focus on different matters.
J: albeit some overlap
RC: Of course. The fact that GRA does not change bio sex is nothing to the point when considering section 9.1 of GRA which enables sec to be changed for all purposes. The GRA has not become redundant. GRA is not purely symbolic, it certifies, what does AN even mean by that?
RC: I don't know the answer. I submit its hardly redundant. It certifies that a person IS entitled to be regarded as a different gender and therefore by virtue of section 9.1 a different sex of that recognised at birth and thus GRA is far from
RC: symbolic bit respects fundamental rights we all have under article 8. Not merely symbolic, goes to heart of every individual is and to simply say EA, reffing woman as PC has thrown that away by implication, is simply incorrect.
(RM goes into FM case further about accessing maternity services) In short enables a woman to obtain free prescriptions and clear example of section 12 as person is 'mother'. Finally we looked at victims of witnesses act and medical examinations, sorry surrogacy act,
RC: which is the same and would submit is covered by section 12 of GRA, again talking about idea of 'motherhood'.
RC: just looking at notes to see if I've missed one.
J: sorry I need to remind myself of precise wording of section 12 of GRA reform surrogacy [reads aloud] Are we getting into choppy waters as far surrogacy is concerned. Person who carries child is surrogate.
J: Are they the mother for these purposes?
RC: yes.
J: well come back in due course. Your sub is section 12 should be first prot of call
RC: or 9.3. More fundamental point is that we're dealing with meaning of 'woman' in EA, NOT dealing with 'mother'
J: I was wondering about that as there's a raft of authorities, context is everything and maybe Hail among others, rigid def in one context may not be right in another and takes us back to Bellinger and status of motherhood. May not be complete answer
RC: we could end up tying ourselves in knots. It's NOT a Q for this court
J: trying to square every circle is a huge task
RC: yes we know what from FPFW case. AN reffed the human fertilisation act 1990 and to use one of his phrases we may be into the rabbit hole here as its not relevant to this case. We see a def on woman and man in this section and in this act man and woman mean girl & boy at birth
RC: I suspect AN would say that means bio sex but might not, might just be collection of eggs and sperms and may reflect medical treatment that would result in them being infertile
J: does it resolve AN conundrum of FM position? (Convo about this Act)
RC: there may be Qs about the 1990 Act
J: I stress there's been a few rabbit holes so far and I've not gone down any of them. Not persuaded it's a Q for this court. When one has made the election for GRC and then chooses reproduction, (missed)
RC: my sub I maintain the Acts do not assist this case as to whether the guidance is unlawful or not. The guidance has not been issued in respect of 1990 act nor re surrogacy, abortion act - the guidance was 2018 Act. Think I mentioned 2011 regulations about expected mothers
RC: I am now turning into the broken record. The final statute to address is offences and examinations. Person has right to request examination of certain sex. Either provision permits the complainer to request interviewer or Examiner is to be man or woman as appropriate.
RC: May be issue of different terms, that being gender, that I respectfully submit, playing my record again (missed).
This takes me back to outset, this case is about revised statutory guidance and what is meant by 'woman'.
RC: That guidance is lawful, it respects Inner House and definition of woman in guidance was provided by law, as a result of section of GRA, which has not been repealed or dissapplied by EA and its def of woman.
RC: No qualifier 'a woman registered as such at birth'. This petition should be refused.
J: ten minutes break
[Court adjourned, back 11.50]