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.

NABALT of course.

When you give a male the protected characteristic of gender reassignment as well as sex (female in this case), you nullify sex as a protected characteristic.

The Scottish government lawyer has said that Trans woman with a GRC are protected under both PC's.

I'm finding this impossible to follow.

That's because it's gobbledygook. Absurdities. Nonsense.

if you can't convince them, confuse them. (h. truman)

NABALT?

Not All Blokes Are Like That.

Yes. See also: Judith Butler

Thanks for the quote, it's a great one. Found an expanded version:

'There is an old politician’s motto which goes to this effect: “If you can’t convince ’em, confuse ’em: if you can’t confuse ’em, scare ’em.” It is an old political pattern that unfortunately works too well, but it is also a pattern that is always followed by an opposition without any real foundation for its arguments.'

quoteinvestigator.com/2013/12/02/confuse-them/

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.

😮

The more I hear, the more I think the GRA needs to be removed from the statute books and protections for trans people to be addressed through the EA2010. This is complete bloody Humpty Dumpty up is down territory & sod the consequences. Enough already!

Freddy was mentioned at least 6 times yesterday & in my opinion Freddy did “ break “ the “ rules “ the moment Freddy became pregnant. The fact that Freddy has two children now that Freddy gave birth to means Freddy treated the GRC with complete contempt.

The version I know

If you can't blind them with science, baffle them with bullshit.

Thank you @Signalbox and others for updating here!

I cannot make sense of MM at all. Lots of hooting and standing on hind legs, but what is the actual argument? And why so keen to not go through the submission in court but then take ages over it?

that's scarily acurate

Yup. The GRA needs to go. This nonsense is what happens when you try to write something into law that does not reflect reality. As a matter of principle the State should not knowingly be handing out false birth certificates to anybody. Instead we should ensure through the EqA that anyone who presents in a non stereotypical manner for their sex should not be harassed/abused/discriminated against. In the meantime ensuring that the EqA means biological sex when it says sex protects important rights.

The 'rules' then are merely shifted in favour of TQ+ politics. Always. Words redefined, concepts redefined.

Hence 'sex is based on gender performance' AND 'any gender performance that is inconvenient to a TQ+ politically useful bod will be defined as not being sex related'.

In other news kittens fish womble random, and in is a neoconcept of postmodernist salad empire colonial leninism related to gravity but also mostly meaning maltesers. Legally.

Just wanted to post this link www.mumsnet.com/talk/womens_rights/4674002-sex-equality-and-equity-network-gender-crit-network-for-civil-servants?reply=121422519
to another thread about a new Cabinet Office approved Civil Service Network -SEEN (Sex Equality and Equity Network).

This will have taken a huge amount to achieve.

I can't really follow this fully, but I think they were saying that because a passport for someone with a GRC would say the 'new' gender as the sex marker that means the sex has changed in reality. So because systems have been set up to follow Stonewall law that is being used to justify all this rubbish

That's great - thanks Arabella!

@ tribunaltweets

twitter.com/tribunaltweets/status/1590708072120750083

MM: If I as a man get a GRC and am living in my acquired gender, as a woman, and I am complaining of sexual harrassment, it is no good to say that I have rights to protection under GR, as that is not the issue

MM That is not the harassment I am facing. In that case, I do not see the point going forward of using this

MM: it is about real people, in real life situations. I have identified in my notes a number of other propositions

And my conclusion of this is that my lady should refuse the proposition, that is all I have to say.

AN: the first point is related to Section 9 of GRA which has been laid out as different to what was stated this morning.

We now have a v different approach, and the position, and there seems to be a lack of willing to investigate what that means

AN: they stated this morning that all ref to gender is the same as sex.

AN this morning was a substantial change in position if it is stated that this meaning of sex, man, woman, is changed in abortion act, which does not make sense that legal sex and biological sex are the same (section 9c)

AN : this means, in relation to EA and in relation to abortio, surrogacy, should be that you do not substitute legal sex for biological sex, but there is a cutting back from the idea that section 9

AN but they now accept that under EA s9, anything refers to protected characteristocs around preganancy that refers to women is biological women

when previously it was stated that legal and bio sex the same. so it was stated this morning - was the word used sensible - to not use the radical position stated earlier that bio sex is over written

J was it said earlier that the whole act was repealed?
AN - no, the whole of S9 is not repealed, but need to be clear on limitaions and meaning. Do not need to discuss disapplication of whole thing, I believ this can be done in common law

AN The EA contains one definition of woman and one def of man, so if sex is used in one part of the act, it means the same throughout, but according to scottish ministers, woman means one thing sometimes, ie bio woman, and something else in another, eg a male w GRC

The law needs to be interpreted in a coherent and consistent fashion. Not just for lawyers, but thos who have to implement the law

AN we hold that there should be one defininition, but what the resp are saying is that no, we have a pick & mix approach, but how is anyone supposed to uphold the law with this approach? so it is the abandonment of these principles

AN - we believe that a definition of biological in consistent and understood, but Scottish ministers are all over the place with their definitions. IT means one thing and then another.

AN they say this is a common sense approach, but one person's common sense is another's utter nonsense.

AN- that was S9, now S12, the other get out of jail free, eg parents groups, when the word mother is used, that S12 overrides S9,

AN it says that if a parent has changed gender, that does not affect the parent's status as the father or mother of that child. So if a person fathers a child and then gets a GRC, they are not that child's mother. And that makes sense

AN- this is the explanatory notes, and para43 says although a person as an acquired gender, that person retains
the status of father or mother, maintaining position within the family

AN- there is a discongruence btwn what the GRA says and what the SMs say it says

AN - explanatory notes can go against what is on the original point in the act.

@ tribunaltweets

twitter.com/tribunaltweets/status/1590714637150195712

AN- finally, the counsel said that inds who applied for GRC said that persons inadvertently affected do not count. Presumably women looking for single sex spaces, or to be treated by someone of the same sex, or a refuge etc. do not count which may come as quite a surprise

AN in terms of assault, a women has a right to request to be examined by someone of the same sex. Is this a 9-1 same sex or 9-3 same sex? Do they have a right to request or guarantee that another biologoical woman would examine them?

AN- have the SMs made these decisions in a rush, without thinking through what it means for women?

AN- and finally finally - those who are often forgotten. the young bio women, oft w ADHD, autism, as seen at Tavi, what does the EHRC tell them? You can change sex, you will no longer suffer from the institutional discrimination of being a woman.

You are now a man with none of the structural discrimination, which may have been part of why she did not want to be a woman, it is gone. This is a pernicious lie.

Here we ignore the effects of a patriarchal society, which the EA is supposed to mitigate for, and we do a disservice to them by pretending that these disadvantages will go away

J- I will read all of these submissions, and read again. This is not a case in which a snap decision can or should be made. I will rise now and make my judgement when ready.

End of session.

What's happening - have they adjourned for a lunch break or has the hearing concluded?

I'm glad AN repeated this...

AN in terms of assault, a women has a right to request to be examined by someone of the same sex. Is this a 9-1 same sex or 9-3 same sex? Do they have a right to request or guarantee that another biologoical woman would examine them?

AN- have the SMs made these decisions in a rush, without thinking through what it means for women?

Seems to have concluded.

But it did seem to be a very abrupt ending and the SG didn't argue their case particularly well, although I'm not watching so perhaps it was better IRL and obviously we haven't seen the bundles.