For Women Scotland Judicial Review 2

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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.

One of the greats (might have been Helen Joyce?) talked about rights ping pong. A transman cannot be told they're not living as a man if they get pregnant because what if it was an accident or even a rape? Are you going to make their GRC conditional on having an abortion? So while I think there is a good case that FM violated terms of his GRC, pregnant "men" can't be ruled out and legislation has to take this into account.

They screwed the whole thing up once they allowed GRCs basically rather than taking a different approach to those that want their sex kept confidential and to enabling same sex marriage. If you make a falsehood legal truth the conclusions that follow from that are uncontrollable.

Was the EHRC saying the judge should reject the FWS submission?

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

This is exactly it. We do not count.

Yes.

This is really bizarre.

Does the EHRC really think that the more likely scenario is that a TW is receiving harassment because they are perceived to be a woman or that they are receiving harassment because they are perceived to be a male trans person. I suspect in nearly all cases it will not be because they are perceived to be a woman. Also can men not make a claim for sexual harassment?

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

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

This is a stupid argument. Harrassment is a crime regardless, they should have talked about discrimination. If they actually thought he was a woman and discriminated against him on that basis, EA already covers discrimination on being perceived to have a protected characteristic. And what about the counter case of a TM with a GRC who is then discriminated against because they /are/ female?

You've demolished their argument in a few lines on Mumsnet!

Ah...Signal, posts crossed. No sooner had I posted my query than I saw the final update had appeared!

That was a weird session with the rambling MM. I couldn't believe how he was carrying on...and on and on and on.

AN is very impressive, sharp, subtle and thorough; his argument multi layered, attacking anomalies, inconsistencies and nonsense effects but also the real-life context of larger purpose and merit, and informed about how laws are interpreted and applied.

Thanks to the wonderful Women for Scotland and thanks for the live reporting and updates.

The approach taken by MM seems at odds with the messages coming out of the EHRC of late which seemed more supportive of women’s rights

Agreed, Sally - is there a separate Scottish EHRC that is still captured? Hopefully the judge will have thought MM's evidence was as nonsensical as we do on this thread.

But they were all for "legal sex" in the census weren't they? Perhaps they see "GRC sex" as a compromise because "it's only a tiny minority". And they want to be seen to be in the middle of things.

I'd like to think that Lady Haldane has gone home and poured herself a stiff drink! Those of you listening, I wonder whether she sounded as incredulous as her questions summarised by TT might suggest?

Maya's Uk govt petition is certainly timely and I hope this case gets publicity in all the papers, especially the Guardian (though I am not holding my breath).

But it won't be a tiny minority soon if the Self ID bill goes through.

And i don't think the EA makes a distinction between Trans people with GRC and trans people without GRC?

And you can't ask for GRC so how do you tell the male with a GRC from the male without a GRC?

I think the GRA was brought in to protect the miniscule number of trans people, many of whom had surgery, and to make their lives easier.

I still don't object to that aim. I do object the way Stonewall et al (including Scottish Government) have bastardised the law to ensure that something that in 2004 did not really have much of an impact to females, is now devastating to many of us and on the current trajectory means that high numbers of females are going to self exclude from vast swathes of daily life.

This is presumably the Scottish wing of the EHRC? Rather than the English dept?

The GRC in practical terms is absolutely pointless, this is being pushed merely for leverage.

There is absolutely no way, as we all know, to ask or check if a male has a GRC when said male comes into a female space. By walking in the space they invoke the expectation of legal protection. Hence how this is a predators' charter.

So if it's one male, it's any male at all under any circumstances, with any agenda at all.

The GRC argument merely leverages the one male.

I am so over this shit.

And I notice still no one in the court is pushing or answering the questions of:

1. What are we going to do with all the excluded women with no access to any space at all so that TQ male people can have their happiest choice from all the spaces? Do they get to pay less taxes for services they can't use?

2. Many of those women have protected characteristics, anyone remember the EqA has nine characteristics and not just TQ? How and why does TQ get to cancel out everyone else's inclusion and access? How is this inclusion and diversity? What is this ranking of prejudice where some is awful but some is just fine? Why bother pretending there is any remaining interest in those groups?

3. Doesn't the fact that all the advantaged women in this situation are male and all the excluded and harmed women are female make this plain old sex discrimination?

4. Doesn't this illustrate that the very obvious difference between said male women and female women is that sex hasn't vanished conveniently for everyone, just penis people? Only some people's inner feelings and needs and realities get validated and oh look they ALL HAVE PENISES. Which kind of demonstrates the power imbalance involved, hence why female people need spaces without any males in them regardless of what that male says is going on inside their inner self?

5. And why are female lives expected to revolve around male people's inner lives anyway? There's no question of reciprocation anywhere in this. See 3: plain old boring sexism.

Is there a Scottish wing of the EHRC? I thought it was just one organisation for the whole of the UK. But yes, when FPFW took ONS (Scotland) to court over their intention to make the sex question in the census self ID. EHRC intervened and said it should be birth sex OR GRC sex and not self-ID sex. As far as I am aware (and am happy to be corrected) this was FPFW's position as well. It was also their position for the EW census that they won wasn't it?

So The EHRC intervened on the side of FPFW (against self ID). But their position is still that it should be birth sex + GRC sex.

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.

This strikes me as RC saying that choosing the sex of your examiner could as rightly/correctly result in a woman receiving a 'gender identity' version of woman (i.e. males who id as the female sex).

Is that what RC (and Scottish gov't) is arguing now?

And Johann Lamont's six word amendment was useless because sex and gender mean the exact same thing?

Also, if a TW has the protected characteristic of a woman if a victim of sexual harassment, are they also to be viewed as a woman if they are a perpetrator of sexual harassment?

Would a male who is a TW dodge having to undergo the same risk assessment as other males? For something like a rapist, voyeur, exposure etc. That would be a huge loophole.

Makes you wonder why so many voted against the amendment doesn't it?

Is this where Labour is going with its three million amendments?

In Scotland TWAW

(except in all these various individual exceptions.)

Because either it then has to be admitted that the GRA/GRC is a gesture only, and doesn't apply in actual reality, or Johann Lamont's carve out to protect biological women just got overturned.

Which is it?

And if her abuser now self identifies as a woman, then she cannot longer use the PC of sex to exclude him from single sex spaces that she uses. (He would be a woman legally so the EA is null and void).