Haldane judgement appeal

[EdinburghName]

Sorry if there's already a thread that I missed, but I haven't seen one. FWS are appealing the Haldane judgement (the one that put "legal sex" where we'd really expect and want "sex"). I just donated: you might want to too. Can't post the link here but if you Google

crowdjustice equality act sex biological

you'll find it.

Thank you OP.
Off to find the crowdfunder.

This is the article where they talk about why they are appealing and has links to crowdfunder

https://forwomen.scot/27/04/2023/judicial-review-appeal/

Thank you for the thread, and for the article.

Thanks, OP. This is good to see.

Spring is coming, it's a good day for gardening. Thank you.

They've sent an email out today with a link to the page as well for those signed up to FWS newsletters.

It's got quite a short run length on the fund raiser and they need to raise £40, 000 and have 29 days to do it.

They're at 4.4k. This could be a pivotal case, I think.

Excellent.

Comment on the crowdfunder:

'The judgement is plainly questionable and requires to be revisited. I am angry that, once again, private funding is required to do this, while Scottish Government finances lobbyists to tell them what they want to hear.'

Couldn't agree more.

Should also bear in mind that if this is taking place in a Scottish Law court, it would not in any alter how the UK (the EA is a UK law) is interpreted.

Has anyone from FWS said how, assuming the ruling was reversed, it would impact on the application of the EA throughout the UK.

Or is the appeal taking place in the UK High Court? Does anyone know?

Not trying to be a party pooper but the legal opinion at the time was that Lady Haldane just ruled that the existing interpretation of the EA continued to be valid.

Nothing changed.

This maybe why the as yet unannouced discussion in response to the Parliamentary Petition to change the wording of the EA is actually more important.

Given the cost wouldn't like to think women are giving money to a legal cul de sac.

Thanks, have donated.

Though not sure of the answers to your questions IwantToRetire

Just as well it’s payday. This decision must be overturned.

Should also bear in mind that if this is taking place in a Scottish Law court, it would not in any alter how the UK (the EA is a UK law) is interpreted.
Has anyone from FWS said how, assuming the ruling was reversed, it would impact on the application of the EA throughout the UK.

The appeal is in the Inner House Court of Session which is the highest civil court in Scotland and as ever, its ruling would be deemed "persuasive" in the rUK. But since Haldane's decision seems to have been widely accepted by the UKGovt, and quoted extensively in the s35 order, I don't think there can be much resistance to accepting a higher Scottish court's ruling should it be overturned. Especially since it would be in line with the Prime Minister's current thinking that sex is biological. It would also make it easier for Westminster to bring in the biological clarification in the Equality Act that has been suggested.

The ambiguity over the definition of sex and woman in the Act needs resolved, and as quickly as possible. Women need the protection of a higher court or an amendment to the Act. But even with the best will in the world the Tories may not have the time before the next election to consult and legislate for such clarity.

It would also make it easier for Westminster to bring in the biological clarification in the Equality Act that has been suggested.

👏

Who knew gardening was so easy?

🥕🥕

Haldane's decision seems to have been widely accepted by the UKGovt

As said up thread and on numerous occassions, it wasn't that her "decision" was accepted, it was that her ruling was in line with the existing practice of the law. ie "for all purposes" trans women are women unless the situation it one that is covered by the EA exemptions.

So the court case changed nothing except that a few newbies to the issue realised for the first time how the inclusion of gender reassignment (not gender id) had been given precedent over actual women. Also confirmed on the Jeremy Vine show by Ayesha Hazarika who helped draft the EA.

That is why at the time Nicola Sturgeon and others had no problem with the outcome of that court case because it changed nothing.

In fact many women were puzzled as to what the purpose of the court case was unless it was a stepping stone to have the case heard in a higher court.

And I am sure many Judges would be horrified to think that they would tailor their decisions based on what might please politicians.

But more importantly as the case is being heard in Scotland where any number of groups were allowed to break the EA by saying that trans women could not be included by single sex service providers, or indeed appoint a trans woman to a post advertised under the EA as women only, the inferrence is that the Scottish legal system is quite happy that trans women are treated as women.

And if there is some independently minded Judge in the Scottish Legal system does overturn what is the accepted legal interpretation of women in the EA throughout the UK, I suspect for it to become actual Law would mean another court case in the UK High Court.

From 2011 UK supreme court's jurisdiction in Scotland upheld by review panel
(I tried to find updates on this but was hampered as for some bizarre reason google has removed the search by date range option - bonkers!)

As I said upthread, this many have been the legal strategy of which ever legal team is advising FWS, but in view of the amount of money already spent on this, and the current fund raising, it might be better if they were a bit clearer or transparent as to what they are hoping to achieve via Scottish Courts.

Nothing like a bit of early morning gardening to waken the appetite 😄

That is why at the time Nicola Sturgeon and others had no problem with the outcome of that court case because it changed nothing.

It wasn’t consistent with what they were saying about the GRR just being an admin exercise and that getting a GRC doesn’t confer extra rights. Seems to me that NS wanted the EA to mean bio women for some purposes and “legal” women for others depending on what suited her agenda.

As said up thread and on numerous occasions, it wasn't that her "decision" was accepted, it was that her ruling was in line with the existing practice of the law. ie "for all purposes" trans women are women unless the situation it one that is covered by the EA exemptions.

The judicial review was accepted by the court as a legitimate case to hear as there was ambiguity in the definitions and practice, there was no agreed interpretation of the law. The EHRC and various legal opinions agreed it needed clarity, there was no consensus that existing practice was correct. The Scottish Government's policy was that TWAW and the Haldane decision (never mind the FWS1 decision) showed that that is not the case - holding a GRC is the dividing line.

SG remain confused on this, sometimes it's biological sex (Forensic Medical Services Act), sometimes it's legal sex (Public Boards), and others it's self-id, sometimes with other conditions (prisons). This is an untenable situation for women.

the inferrence is that the Scottish legal system is quite happy that trans women are treated as women.

No, the court ruled in FWS1 that provision for women, by definition (in the Equality Act) excludes biological males, and a lower court in FWS2 ruled it the acquisition of a GRC that means a biological man is a woman for the purposes of the Equality Act. Haldane should have been bound by FWS1 but she considered this part of the decision not to be in the "ratio". She was wrong, it was.
Also, there is no such thing as a transwoman in law, FWS1 ruled that TW is not a protected characteristic.

it might be better if they were a bit clearer or transparent as to what they are hoping to achieve via Scottish Courts

Clarity. Women throughout the UK need this resolved; UKGovt amendment of the Equality Act is one way (and time is against them) and this court case is another way, and is in play right now. A definitive ruling from the highest court should bring ScotGovt policy, and that of other orgs, into line. Worst case scenario is that we are stuck with the Haldane decision and if that happens it may well prompt speedier action from UKGovt. Best case scenario is that woman is deemed a biological sex and the EHRC will have to enforce this.

"for all purposes" trans women are women unless the situation it one that is covered by the EA exemptions

But the exceptions simply cannot work at all if woman is "legal sex" and not biological sex. As Michael Foran and others have pointed out there is no way to limit any service or space to bio women if they are not a protected characteristic in the Equality Act.

The exceptions allow provision of a single-sex service where it is a legitimate aim, where, if sex is legal sex, it means a single-legal-sex service. So a woman-only service under the exceptions must cover, by definition, bio women (except those with a GRC saying they are men) plus bio men with a GRC saying they are women.

IwantToRetire. You seem confused. FW1 ruled at a higher court that Transwomen are men for purpose of the Equality Act. Self ID doesn’t make them women via the protected characteristic of gender reassignment. It had also previously been established that the comparator for a man with the protected characteristic of gender reassignment (a transwoman) was other men. Haldane concerns itself exclusively with those with GRC, which is why Sturgeon was wrong to say the GRR made no difference.

Clarity. Women throughout the UK need this resolved - never a truer word spoken!

Interesting Twitter thread from Michael Foran on the impact this case could have on the S35 Order if they won...

https://twitter.com/michaelpforan/status/1651906064516784128

"This appeal could have quite significant consequences for the s.35 judicial review. The basis of the Order was that the GRA affects the operation of the Equality Act because as per Lady Haldane, sex = legal sex in the Act. Modifying who and how you can change legal sex changes EA

That was a reasonable thing for the U.K. gov to conclude given the recent decision and the short timeframe it had to make the Order. But if Haldane is overturned on appeal (which would be correct imo) then the s35 Order would have been made on the basis of an error in law.

This would likely result in the court holding that the s35 Order ceases to have legal effect and the court might not even get into the second stage of the s35 test (reasonable grounds to conclude adverse effects)

If that happens then we won’t get much clarity as to the scope of the s35 power or the intensity with which the court will review the reasons offered to justify the conclusion that there would be adverse effects.

So depending on timetabling we one of these cases is going to affect the other significantly. If the s35 JR is heard first and the Court concludes there was an error of law to believe that sex = legal sex in the EA then that’s going to have a massive impact on the FWS appeal"

Crikey, it's all happening at once, isn't it?