Tougher transgender guidance for schools is unlawful, Sunak told

[Igneococcus]

Sorry can't do sharetoken on this device, I'll do one later if nobody else posts one.
Tougher transgender guidance for schools is unlawful, Sunak told (thetimes.co.uk)

What an utter mess this all is.

"Prentis said that a blanket ban would be unlawful because the Equalities Act states that gender reassignment is a “protected characteristic”, regardless of age. She gave the same advice when ministers asked whether there could be a ban on social transitioning for primary school children."

Yes it was.

https://hudoc.echr.coe.int/eng-press?i=003-585597-589247

And this part of the judgment looks highly questionable with 21 years' worth of hindsight:

No concrete or substantial hardship or detriment to the public interest had indeed been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, the Court considered that society might reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost.

But we're straying a long way from the topic of this thread. GRA has nothing to do with schools guidance or the PC of gender reassignment.

i thought the GRA was brought in not because there is a moral right to a legal sex change, but because ECHR said to the UK gov that they were discriminating against transsexual people because they didn’t have the same rights as others, at a time when there was no same sex marriage or civil partnerships and there were different state pension ages for men and women.

Now that there is same sex marriage and everyone has the same pension age, if someone wants to ‘live as the opposite sex’ in their view then that’s fine and obviously they should be able to do so without discrimination. But why (legally speaking) does the UK need to offer a legal sex change if the justifications made for it have been removed legally? Why not rely on equality act protections to prevent gender non conforming people being discriminated against and repeal the GRA?

Wow, yeah just re-read equality act and other attributes of sex could envelope sex presentation, i.e. appearance. So I wonder if growing hair out from boy's length to girl's length qualifies.

https://www.legislation.gov.uk/ukpga/2010/15/section/7

But that wasn’t the decisive issue. There’s a whole other part of the judgment on Article 8 rights. And the court did not just find a right to equal pensions or marriage or anything else - it explicitly established a right to legal gender recognition.

But of course we don’t just need to focus on Goodwin - the right to gender recognition has been reaffirmed by the ECHR in many subsequent cases, including very recent cases.

So if a law is passed in response to an ECHR judgment then we are stuck with that law until the end of time, no matter how obsolete it has become and no matter what the unintended consequences?

Can that be right? 🤔

I don’t dismiss the argument that to be part of the ECHR hide-bounds us to their established and accepted gender ideology

So in a vote I guess people would have to decide which way to jump

Because if this is the case then I've changed my mind and I think we should leave ECHR (I don't think it is though?)

Is that true? Do people not have the right to say that they believe or don't believe in gender? What is wrong is compelling others to participate in your belief. So people shouldn't be compelled to use wrong-sex pronouns for example if they don't believe in gender.

The problem is that AFAIK this question hasn't been tested in the courts yet, so it's still relatively unclear as to exactly how far gender critical people should be expected to accommodate other beliefs in the workplace and/or schools, etc from a legal perspective.

And the issue with Sunak trying to make the guidance immune to any possible legal challenge is that he is trying to achieve the impossible as the law isn't clear on these points and there will inevitably be legal challenges from one or more sides of the debate regardless of what the guidance says.

But we all need the government guidance to start with, in order to settle the legal issues over time. The legal challenges are a necessary part of untangling this whole mess.

Declaration of intent, or actual exiting of, the ECHR would unleash to tsunami of all tsunamis, incl trade war with EU as No Deal is activated, and likely sanctions from US.

Well, no. It's up to states how they comply with international obligations.

So, for example, the right to life implies that countries must have laws that prohibit murder. That doesn't mean that UK law that prohibits murder can never change. It's just that change must remain consistent with the Convention and its case law - otherwise it will be a breach of international law.

So if we decide, for example, that some of our distinctions between murder and manslaughter are outdated, remedying that is probably fine. If we decide that actually murder should be decriminalised if there is a full moon, or if the victim is named Sebastian - that law would be unlawful in international law terms.

So changing the GRA would be permitted, provided that the legal right to change gender (free from some of the constraints that the Court has since ruled to be violations of Article 8) remained.

The point is that scrapping the GRA entirely, with nothing to replace it, would be a breach of convention rights. And if the thing that replaced it was significantly weaker, that would also breach convention rights (since the GRA is already at the weaker end of what the ECHR requires).

So changing the GRA would be permitted, provided that the legal right to change gender (free from some of the constraints that the Court has since ruled to be violations of Article 8) remained.

The point is that scrapping the GRA entirely, with nothing to replace it, would be a breach of convention rights.

I don't think the judgment says that explicitly, but I'd have to read the article 8 part again more thoroughly. If the ECHR has ruled that there has been a breach of article 8, it is up to the member state to change their laws to comply with the ruling, but as far as I can see there is nothing in that judgment which says that the UK must pass a law permitting legal gender recognition.

If I'm wrong, perhaps you can point me to the paragraph which says this. As I've already said, IANAL and I do find legalese quite impenetrable sometimes.

LonginesPrime . Today 13:00
But we all need the government guidance to start with, in order to settle the legal issues over time. The legal challenges are a necessary part of untangling this whole mess.

Many people on here have spoken of using legal challenges to sort out the mess, but
a. most ordinary people cannot challenge

b. Who is to say it makes for an improvement? What about the Haldane judgement? Or the first Maya one?

I am a firm believer in repealing the GRA. The inequalities that existed at the time have been resolved in other ways, and I believe that it is also wrong that anyone should be able to create a legal fiction of being something they are materially in reality not. It has been destruction tested and the impact on others is too great to tolerate, it needs to go.

Likewise the whole 'you can hold that belief but you must not express it' is also right out I'm afraid. You can try and make it sound like holding a racist belief or a homophobic belief where to speak it is harassment: this has been working very well for the TQ+ lobby for years now, but it has been proven in court to be what women said from the start. Stating a belief in reality is not offensive, and it is not reasonable to expect people to perform a belief or deny reality on the grounds that someone will be upset by it.

This requirement to create a fiction for others is a unique thing. It is unreasonable, it unreasonably tramples on others' rights, and it is not reasonable to require enablement in personal fiction at all times on the grounds that someone stating a reality you dislike and have rejected is offensive to you. It may well be, but this is no one else's problem to resolve for you.

Can I ask something?

If Suella Braverman was still attorney general, do we really think this would have been her advice?

Not in a month of Sundays.

This is particularly the case when it is the gun held to women's heads to say:

You cannot say you need a single sex space because it's offensive to me.
You cannot say you need a right to single sex sport because it's offensive to me
You cannot say that lesbians do not shag men because it's offensive to me.
You cannot call yourself a woman or a mother because it's offensive to me.

Women at this point have been fucking offended for years by all this shit without trying to take everyone to court to make them stop.

"Since there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, it reaches the conclusion that the fair balance that is inherent in the Convention now tilts decisively in favour of the applicant."

Para 93. The judgment was not narrowly about whether Christine Goodwin had the right to marry. It was more broadly about whether she had a right to legally change her gender. Marriage and pensions were mentioned as reasons, but so were lots of other factors - mortgages, insurance and other areas where she might need to show her birth certificate.

Is Suella Braverman really the threshold now for sound legal advice?

She was appointed to that role for one reason and one reason only - to give Boris Johnson the right advice when it came to breaching international law on the NI Protocol. I agree, she would probably have given politically convenient rather than legally sound advice in this situation too.

OK - if you firmly believe in repealing the GRA, then you firmly believe in withdrawing from the ECHR too, and should own that fact.

As for an absolute right to express a belief in the workplace, no one has ever had that right.

Yes, that's the part that is summarised in the quote I included above. As I said, with 21 years' worth of hindsight, it looks highly questionable.

Or as @Froodwithatowel says, 'It has been destruction tested and the impact on others is too great to tolerate, it needs to go.'

I don't agree that repealing the GRA has anything to do with the EHRC.

It's a bad law, it is no longer needed for purposes of equality, no one should be able to be anything that they legally are not.

And you are trying to equate women stating reality to point out their own needs with harassment. It is not.

sorry not legally are not: in material reality are not.

The word salad of all this is mind numbing.

That's not how jurisprudence works. The precedent stands unless and until it is overturned. And there is no indication of the court wanting to overturn it - quite the opposite. It has actually expanded the right in recent years.

So obviously you're welcome to disagree with the Court's decisions on this. But the fact remains - while we remain ECHR members, repealing the GRA (or significantly weakening it) would be a breach of international law.

Yes, that's fair enough.

To be clear, I don't think the guidance that was supposed to be issued by now should be striving to be a comprehensive guide to all things gender-related.

I think that's too ambitious and unrealistic given where we are, and I think this huge question about social transition, while a very important long-term question, is not appropriate to be shoe-horned into urgent guidance that schools need right now to deal with actual issues on the ground.

Since the government doesn't have clarity on where they stand legally on social transition (which they obviously won't do as it would require more clinical research and more clarity around what gender identity is, and if the NHS don't know what to do for the best yet, why would the government know any better?, and so on), then they at least need to produce some interim guidance on the issues they can currently guide schools on, such as single-sex spaces, how to deal with gender critical views, and so on.

I think delaying the guidance until legal clarity on the whole issue is achieved will mean that no guidance ever materialises, and it will end up being settled through employment tribunals and discrimination cases against individual schools/councils anyway, as schools are inevitability going to be forced by circumstance to make the difficult decisions the government is still grappling with, and most schools won't be able to keep everyone happy in making those decisions (and yes, I agree that most people won't take legal action and will simply move on to different jobs or schools through necessity).

While the government can hold off on issuing guidance, the schools can't hold off on making operational decisions on these issues involving actual pupils. They can't just close schools until they have appropriate guidance, and a single child, for example, can't be both prohibited from using the toilets of the opposite sex and allowed to use them, so there will be no option for schools to sit on the fence the way the government is. Schools are going to have to continue having a stab at getting all of this right, regardless of whether or not the government intends to keeps shifting the scope of this fabled guidance until they run out the clock.

We all have all sorts of highly sensitive personal data which we sometimetimes need to disclose in certain circumstances. That's what data protection laws are for. GDPR provides robust protection especially for the most sensitive kinds of data.

It makes no sense to allow one tiny group of people to falsify their data because they find it distressing. Especially as even the ECHR has not managed to outlaw the evidence of our eyes and ears.

Lots of people with no father named on their birth certificate might find it distressing when they are called upon to disclose it. Perhaps they should be allowed to make one up?