ECHR as the next battleground for the rights of women and children

[Ingenieur]

I have started this thread to avoid derailing a previous one.

Original thread:

https://www.mumsnet.com/talk/womens_rights/4852476-tougher-transgender-guidance-for-schools-is-unlawful-sunak-told?page=1

It was suggested there that the ECHR would be an impediment to rescinding or fundamentally changing the GRA or the gender reassignment parts of the Equality Act. This is on the basis that membership of the European Convention on Human Rights would not permit the unwinding of existing rights, even if it does not force member nations to comply.

I know most of us do not practise law, and even fewer are international or constitutional lawyers, but I'd like to understand more of the nuance surrounding this aspect of our fight.

As a starter for 10, is this even true? Is leaving the ECHR the only solition to unwinding these laws?

Also, looking at the ECHR summary of the Goodwin case, it states the following:

Since there [we]re no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, the Court reache[d] the conclusion that the notion of fair balance inherent in the Convention now tilt[ed] decisively in favour of the applicant.

It is astonishing that a case which overturned a number of previous ECHR Article 8 and Article 12 cases was judged on the basis of public interest, and that no public interest was noted.

Seems like a bit of a mess.

Any law that enshrines a lie or fantasy into statute is a bad law. Laws must be based on facts and reality in order to be accepted by citizens. Laws that are known lies encourage people to despise and dismiss lawmakers. Our democracy depends on acceptance of, and compliance with, the social contract.

"The Party told you to reject the evidence of your eyes and ears. It was their final, most essential command". George Orwell.

It does appear to be true that the World well the un at least and eu and USA and Canada and nz so def need to leave the echr. They seem to put mens hr above womens generally.

One of the long term goals of the pro-Brexit lobbyists was opening up scope to exit the European Convention on Human Rights.

I’d anticipate seeing lots of “take back control” arguments being deployed in favour of it, including this one.

According to the poster on the other thread the judgment you link to was the reason why the GRA 2004 was brought in. So that judgment must be 20 years old.

There’s been plenty evidence of “public interest” harms over the last two decades.

And the legalisation of same-sex marriage means there’s no legal benefit to having a piece of paper with the letter F printed on it in place of the letter M, other than an entitlement (according to Haldane’s interpretation of the law) to access spaces where female humans are in a state of undress.

However, it is now being acknowledged, at least by some politicians in the UK, that such access does affect the rights of others. The public interest harm most likely to carry weight would, I imagine, be the rights of members of religious groups to access single sex facilities where their religion requires that.

Massive caveat: IANAL and haven’t done background reading into this.

TLDR: I wouldn’t get too hung up in the ECHR angle. As discussed in another thread, if you’ve got UK legislation which protects single sex spaces but lobby groups are using their employer award schemes to override those protections, then the most practical, useful, and important first step is to put a stop to their misrepresentations.

We could leave the ECHR as long as the UK doesn't mind ending the Peace Process in Ireland and a return to bombings on the mainland. Which would happen. Because the Good Friday Agreement requires the UK to be a member of the ECHR so citizens of Northern Ireland maintain the same rights and access to the Convention on Human Rights as the people of Ireland do. There are Tories rabid enough and stupid enough to do that. But most of them actually like not having the big terrorist organisations operating on UK spil

The other thread had some interesting points on this as I wasn’t aware of issue wrt being in the ECHR or exiting

I don’t have a firm view yet, there are strong arguments on either side, here to read some

Because you do not agree with one interpretation of human rights is not a good reason to abandon the ECHR or the UN convention. Find another way of dealing with your issues. It would be sheer madness to take the UK out of conventions that uphold human rights - and insanity to expect a Tory UK government to not use that as an excuse to reduce the human rights of everybody. Many of the equality laws including those for women are founded on the principles of human rights; and basic decencies that we take for granted in a civilised society are based on a developing undertanding over time of what human rights mean. Of course, if you think that taking the same route as Russia did in 2022 is such a great idea, you'll no doubt think that a Tory UK government unfettered by human rights is a pretty good idea.

Weird interpretation of tory on thus site. The triple lock, universal credit etc we have are more than many eu countries and tory policies but people see tory as right wing! Pretty central though and certainly far saner than the majority of Labour mps who seem to not understand maths or reality the vast majority of the time.

KPSS can demonstrate the current GRA undermines safeguarding; so it is questionable if it is legal in its current form.

Because you do not agree with one interpretation of human rights is not a good reason to abandon the ECHR or the UN convention.

Especially if it can be argued that the interpretation was a misinterpretation, partial, or fundamentally flawed.

It might arguably be a human right to tell as many lies as you can get away with, but I can’t see how it can be a human right to force others to act as if they believe them or a human right to have a favoured set of untruths legally declared to be truths.

Also if progress in equality actually means removing rights of women I think somethings gone badly wrong and blindly following the trend is not a good thing. Look at nz and Canada. Its not just sex based rights, what about euthanasia for any reason? Even under 18s? Look at Belgium. Progressive might not always be progressive. People in the 20s thought eugenics was a very good thing, not so much now.

We don't need to leave ECHR we need to continue bringing women's human rights cases through the courts until we end up there and can get Goodwin overturned. That's how PFC got the GRA, that's how we can get rid of it.

It would be a long slog but it's doable.

This is a bit of a red herring. Ireland didn't incorporate the rights of the ECHR into Irish law until 2003, 5 years after the GFR so, legally, Irish citizens had less protection than their NI neighbors.

The GFA required both governments to provide the rights of the ECHR, not to be signatories. The only way that UK would be in breach would be to repeal the Human Rights Act.

Yes, I'd be very hesitant to leave the ECHR. It underpins a lot of rights. Perhaps a better option would be to work with our European sisters to get the ECHR fit for purpose when it comes to women's rights.

The triple lock was introduced in 2010 and was a coalition policy - it was actually Lib Dem policy, not Conservative policy. If you think universal credit is a good thing, you clearly don't claim it. But amongst other things the Tories have brought us are:

• Partygate: alcohol-driven parties which break the laws that we introduced
• PPE-gate: how we spent £millions buying useless PPE from our best mates and the idiots who voted for us didn't notice
• Rwanda: prove our commitment to human rights by sending asylum seekers to a country where its own citizens murder each other, but oh, did we mention our Home Secretary has some pals there who have a lot of money are are going to get richer off the back of this
• PIP: the disability benefit aimed at ensuring no disabled person qualifies for it
• Work until you drop: retirement ages raised three times since 2010
• Blaming the victims of the Grenfell disaster for their own deaths as they were too stupid to flee from a burning building
• Brexit lies
• Austerity measures that reduced services to the most vulnerable in society and directly led to deaths
• And one of my personal favourites, from a now former minister writing that men face far more discrimination than women "Political correctness has gone mad, hasn’t it? Why can’t I grope women in the street? I can see their ankles, they’re clearly asking for it!"

And that really is just to name a few things - I need to go shopping so I don't have all day to go through the full list.

Our benefits are really less generous than many European countries; and it was European law that drove many of the improvements in employment rights (some of which may fall this year due to the repeal of European led legisaltion).

It isn't a weird interpretation of Tory at all. It's weird you think the Tories are in anything for anyone other than themselves.

It's interesting how the government were willing to dismiss/discount the ECHR when it came to the migration bill but not in relation to guidance for schools relating to gender non conformity!

This seems key to me

Ireland signed the European Convention on Human Rights treaty in 1950 and in doing so granted its citizens the right to bring cases to the ECHR. Because of the Good Friday Agreement the UK must give the citizens of Northern Ireland exactly the same level of access (the right to go to the ECHR, which can only be done by citizens of member states to the Convention)

The UK cannot leave the ECHR, but keep part of the UK in it. It's all the state or none of the state. The UK can't stop UK citizens bringing cases to the ECHR without withdrawing from the Convention treaty. If it withdraws from the Convention treaty it has unilaterally withdrawn from the Good Friday Agreement. The Troubles return, bombings return to the mainland. I lived through the Troubles. I have no desire to return to them

Signatories to the Convention treaty (and therefore access granted to the ECHR to its citizens) includes Ireland and Spain. Any change to the Treaty requires all member states to agree. Neither Ireland or Spain would agree to any change to the Treaty, nor is it likely that France would

For those interested in a thoughtful discussion of some of the issues with modern human rights law, Jonathan sumption’s reith lecture on the issue is good. From 2019, on bbc sounds

This is what we need to do.

We need to campaign within the UK for reform of the GRA. If other laws passed since the GRA mean that the GRA is no longer required for compliance with the Goodwin ruling, then it could be repealed.

With same-sex marriage, we don't need the GRA in order for two people of the same sex to marry, so it's not required to fulfil the requirements of Article 12.

The other breach was Article 8. Is the GRA still necessary to avoid breaching this? It's not clear to me what the judgment actually requires to remedy the breach of article 8.

This is the full judgment. Article 8 is covered in paragraphs 59-93.

https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-60596%22]}

It seems to me that many of the applicant's complaints have since been remedied by other changes to the law in the UK. For example there is no longer a different retirement age for men and women and the discrimination aspect is covered by the protected characteristic of gender reassignment in the EA.

I think it's useful to consider the basic idea of organizations like the ECHR.

I don't think any nation's ability to uphold human rights is determined by being a member of an international body. It is through their own policies and legislation that these things are enacted, and it doesn't somehow become impossible to create such laws etc without the international body.

The idea of belonging to such a body is really about trying to create pressure for all members of the group to uphold the same values. Which works if you think the values they are working from are correct.

There's nothing to say though, that such an organization could not take a really different direction than the one your nation state thinks is correct. As someone said, it could be possible to see a scenario where over time, the ECHR had views on human rights that were in real contradiction to those of the UK.

I don't think any nation state should tie itself to these kinds of international bodies as if that is a permanent, for all times thing. At the moment, it does seem like the ECHR sees changing gender as a right, which I think is simply factually incorrect. They question to me then is that something that can change over time through the processes of the court, or is it a more basic, permanent parting of the ways.

No, we shouldn't leave the ECHR. It is important to specifically protect people's rights in law. The GRA is a perfect example of the disaster of paying law without taking into account the human rights of others.

https://www.echr.coe.int/documents/d/echr/Convention_ENG

The European Convention on Human Rights says absolutely nothing about gender identity.

It talks about “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” ‘Other status’ - could mean anything.

It talks repeatedly about the freedoms and rights not being absolute, but that they may be legitimately restricted for various reasons, including the protection of health and the protection of the rights of others.

As I understand it, the GRA was enacted because the ECHR told Britain that preventing a man from marrying another man was contrary to his human rights as a homosexual person. So, rather than legalise gay marriage, Britain created the legal fiction that a man could be a woman.

We now have legalised equal civil marriage. Homosexual people have exactly the same rights as heterosexual people.

Not only is there no need for the GRA, it has proven to be an Act that contravenes the ECHR, as it supports injuring the health of people, and removing the rights of others.

It's not the ECHR we should chuck, but the GRA.

The problem is not the ECHR itself but the fact that it is a “dynamic treaty” - the rights within it are subject to interpretation and development by the Strasbourg court. Thus you get significant developments in many areas which have never been debated or agreed democratically.
sumption explains all this much better

@LowKeyLockee Have you read the GFA?

I'm not sure why people think there is no basis for human rights without belonging to an international body?

It still comes down to the nation making certain laws and policies.

There is no reason that a given international body has better insight to what natural human rights might mean than any particular nation.