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.

But that's all predicated on their being two sides: repealing the GRA which advances the rights of women; and preserving peace in Northern Ireland which is irrelevant to women.

Of course that's massively flawed. Because peace in Northern Ireland massively advances the rights and wellbeing of women.

So the question really is whether repealing GRA and scrapping the GFA would be better for women, than retaining the GRA and retaining the GFA.

Of course if you were interested in a good faith discussion, the points I make about the legal position of the GRA, ECHR and Good Friday Agreement can be taken on their own merits, and argued with if you disagree, irrespective of my broader view on gender etc.

If I am right about the GFA, ECHR etc, then I am right irrespective of my views.

And if I am wrong, then I am also wrong irrespective of my views.

Of course if you are only willing to engage in facts presented by people who assure you they have sufficient purity of mind, that's your choice. But the issues I have raised (in good faith whether you believe it or not) remain irrespective of whether you like my opinions or not.

How can it be an "agenda" to pose a question germane to many of the topics on this board including this thread? The question is:

'Should the state, that being Parliament, the devolved legislatures, and the devolved legislatures hold a record of your sex that is tied specifically to you?'

The knowledge of the sex of the overall population is useful, to be certain. But that is obtained via census data. It is part of the purpose of the census

Nor do I say that it's necessary that the state stops holding the details of sex for each specific individual

I'm asking the question, "Is it necessary?" and pointing out that if it isn't and the state stops recording that data then there can be no officially held record of sex that can be changed under Article 8

Are there not people here arguing for those records not to be changed? Of course ther are. If those records do not exist they cannot be changed. Ergo a solution

But I do not argue that this is the only possible route, nor do I argue that it's necessarily without its flaws. Hence it being the form of a question, one designed to probe "What are the flaws? Are they insurmountable?". People are free to interact with it or not as they see fit. But nonetheless it is a proposed solution that falls within the topic of this thread

Repealing the GRA without there being an alternative mechanism in place, such as courts ordering records to be changed which is a matter that does fall within their power and remit, is not something that can be done while the UK is a member of the Convention on Human Rights

The UK cannot leave the Convention on Human Rights. Being a member isn't an arbitrary requirement of the Good Friday Agreement but a feature designed to meet the sensibilities and delicate situation within the island of Ireland, the biggest split being one side's insistence that the citizens of Northern Ireland are British only, another side's insistence that they are citizens of Ireland and not Britain, and the third that they are citizens of both

Far from impenetrable. The two fundamental basics of community jurisprudence in regard to decisions from the ECHR are:

i) All decisions from the ECHR in regards to human rights judgements apply to all member states equally

and

ii) Precedent set by the ECHR is determined to have been set from the date of each member state having joined the Convention treaty as the Court cannot make law, but instead can only define what rights exist under the treaty and are therefore rights fundamental to all humans covered by the treaty (see A (Respondent) v. Chief Constable of West Yorkshire Police (Appellant) and another, [2004] as an example of this. Lady Haldane in the judgement notes that because of the nature of community jurisprudence, in part, the correct precedent to apply is one that's not from the ECHR but from another court, thereby avoiding the difficulties posed by ECHR community jurisprudence)

"I'd like to point out to you that I have said here (or possibly on the other thread) that I do not have legal training"

And yet regardless of that you put forward a complex and nuanced view of a matter of law as if they were facts of law. I pointed out in the simplest terms possible why the claims about the law were not correct. It is a perfectly reasonable assumption to make that somebody providing a complex and nuanced view on a court judgement would have the necessary skills to follow that judgement, and I believe I said that I assumed that you had those skills

Nor was my reply anything but civil. I would provide an uncivil reply as an example of what one coming from me would look like but I believe such a post would be deleted as not being in the spirit of MN and would count as attacking the user being replied to

As for your last paragraph I can only note that in my experience people who feel the need to be claim "this is so and that is so" in an authoritative manner and then when challenged on it with evidence offered as to why their claim is incorrect then claim, 'oh, but I don't have any training or experience in this' as opposed to taking the opportunity to learn something from the reply if only to argue against it, often do so out of a feeling of insecurity because they don't understand fully themselves

Personal experience is such a wonderful thing, is it not? Or perhaps it is a case that the sauce for one goose is sauce for another, to paraphrase a saying into a more appropriate form

What, precisely, was impenetrable about my meaning? I laid out the relevant facts of the judgement. If the tone does not suit you I would point out that I'm ND. What you perceive as being one tone is almost certainly not. It is my (long) experience that people misperceive 'tone' from any person who is ND

Because that is how law works, whether domestic law or the clarifying law of the ECHR. In part it is because later precedent overrides preceding identical precedent, and in part because of mutandis mutatis which is a handy phrase used in law as it means 'to examine a thing in regards to how it has been altered by other matters, often how an aspect of one judgement is altered by another that has provided either greater clarification on that particular part, or has since superceded it, either as the result of the second judgement coming from a court superior to the court providing the first judgement, or the court for the first and second judgement not being superior to each other but is not bound by precedent set by itself and no superior precedent exists, or where a jurisdiction providing the separate judgements does not use a precedent system (e.g Germany)'

There are many who believe that the use of Latin in law is an affection designed to claim superiority over 'the plebs' and to make the workings of the law impenetrable to those who have not committed to first studying and then working in law. And some of it certainly is. But most phrases exist as a way of easily and quickly referring to matters of how law work using terms long since established. Consider the 90+ words used to describe mutandis mutatis compared to the two words that is mutandis mutatis

But this thread is titled, "ECHR as the next battleground for the rights of women and children" not "Repealing the GRA", is it not? The response to you is in that regard. It is lengthy because your reply required that length to provide an adequate response that covered the relevant matters with the supporting evidence provided

Which is better as a response from me? An argument put forward in full with evidence so that it may be examined, or mere blank statement of "[X] is wrong. None of that is correct"?

Dysgraphia. It is very easy for me to misspell one word with its homophone and I'll often not notice it because that's how it works. It is of no matter in this context and in truth I've never noticed any issue in a professional context. Reasonable adjustment is made for disability under those circumstances

You mean it's revealing that that is what the European Convention on Human Rights is and how it works? Or revealing in another manner?

It is a perfectly reasonable assumption to make that somebody providing a complex and nuanced view on a court judgement would have the necessary skills to follow that judgement, and I believe I said that I assumed that you had those skills

This is an internet discussion forum (called 'mumsnet', not 'lawyersnet') where everyone, with and without legal expertise, is free to post their opinions. Why on earth would you assume I was a lawyer (especially when I had previously said I was not)?

I did eventually read your full reply to me. It was absurdly verbose and unnecessarily complicated as a reply to a layperson who just wants to understand what can be done to repeal a misogynistic and homophobic law which was passed 20 years ago following a misogynistic and homophobic ruling by the ECHR.

Anyway, since you can't even spell 'judgment' correctly and incorrectly quoted the names on one of the other cases you mentioned (thanks @PencilsInSpace for pointing that one out - I'd missed it), I find it hard to give too much credence to anything else you say.

As for your last paragraph I can only note that in my experience people who feel the need to be claim "this is so and that is so" in an authoritative manner and then when challenged on it with evidence offered as to why their claim is incorrect then claim, 'oh, but I don't have any training or experience in this' as opposed to taking the opportunity to learn something from the reply if only to argue against it, often do so out of a feeling of insecurity because they don't understand fully themselves

An admission that I don't know something is a declaration that I don't understand. I'm not insecure about not understanding. I know I don't understand all the legal nuances and I've asked for help in understanding. I've actually asked for the opportunity to learn. Your absurdly long reply didn't help. Have you ever considered trying to be more concise and more comprehensible to the layperson, or is your aim just to obfuscate and confuse?

Rattled by something that cannot meaningfully happen while the UK is a signatory member of the Convention and that the UK cannot leave the ECHR without breaching the Good Friday Agreement?

No

Ireland has passed a law providing Article 8 rights greater than that required by the Convention. Northern Ireland has Article 8 rights that are now at about that required by the Convention

In either case all citizens of the island of Ireland have equal access to bring cases to the ECHR itself, as is required by the terms of the Good Friday Agreement. Hence the relevance to the topic heading of this thread and some of the proposed solutions

The Good Friday Agreement is no longer fit for purpose despite the greater part of terrorist activities having ceased under it and the breaching of it being seen as sufficient cause for the same terrorist groups to begin their acts of terrorism again?

I wholeheartedly disagree your statement. I lived through 23 years of the Troubles, including bombings on the mainland and the use of civilians by the British Army as living bomb detectors or as targets for snipers from the Republican terrorist side (it was common practice for cars to be stolen by terrorists and left somewhere, either rigged with a bomb, or with a sniper placed nearby. The response by both the police and British Army at the time was that when a stolen vehicle was located they wouldn't approach it or investigate, instead notifying the owner and requiring them to come and pick it up. I trust I don't need to draw a graphic picture of just how obscene that practice was. This practice was so common and normalised that a former member of the British Army talked about it live on BBC Radio during interview at the Proms some years ago as if it was a practice that wasn't just nothing to be concerned about, but rather a practice that was to be respected. I also hope it provides some level of understanding of why a minimum guaranteed level of access to human rights was baked into the GFA)

Because they wouldn't "need to drag it through the courts again". They can merely apply for relief to access an accepted, existing human right, from the domestic courts. That would be granted as UK courts are bound by precedent issued from the ECHR. If you recall, UK courts aren't sovereign

Just a friendly clarification as you've made it clear to me you have no experience of law. 'Legal fiction' is a term with specific legal meaning. Your use of the term in this case is incorrect as neither Convention rights (arising from an international treaty) or statutory law falls within that meaning

'to examine a thing in regards to how it has been altered by other matters, often how an aspect of one judgement is altered by another that has provided either greater clarification on that particular part, or has since superceded it, either as the result of the second judgement coming from a court superior to the court providing the first judgement, or the court for the first and second judgement not being superior to each other but is not bound by precedent set by itself and no superior precedent exists, or where a jurisdiction providing the separate judgements does not use a precedent system (e.g Germany)'

Where is this quoted from @LowKeyLockee ? Because they can't spell.

...acts of terrorism by major terrorist groups no longer take place, including bombings on the mainland

Oh. Wait. No. That's a good thing and is one of the primary purposes of the Good Friday Agreement. Notably, it's still working

"Earlier we had another poster saying that we didn't need to have our sex on our birth certificate at all"

Incorrect. I posed the question as to why we need it. It's interesting that so far there has been no answer as to why we need it that stands up to even cursory scrutiny. And yes, it does related directly to the matter of the ECHR. I'm perfectly happy to hear a concrete reason as to why it's needed, That is why it is in the form of a question

"I don't know why we can't just go back to birth certificates reflecting reality (sex) and if some people want to have a special certificate just for them showing that they have a gender identity"

Because that would breach multiple ECHR rulings, including that directly of privacy, resulting in compensation having to be paid out to those who can no longer access that particular aspect of Article 8 of the Convention

To repurpose a previous question of mine. What purpose is there having somebody's sex listed on a death certificate at all?

In this I can't see any purpose for it and, as has already been mentioned, the dead aren't in a position to care

"Sorry are we being told to [not] leave it or NI will start terrorism again and the troubles? I think that's very unfair blackmail"

It's blackmail to not return to a situation where civilians were killed in bombings, executed in cold blood, or seriously maimed? Sorry. No. It is a comparison of two states. One where there is peace, flawed as some aspects are, or no peace where the current flaws are worse and terrorism returns

There is some Judith Butler-tier obfuscation going on in this thread!

In plain English, it seems the assertions put forward are

1. Ministers cannot pass legislation to repeal the GRA because it would be "unlawful" as they would have prior knowledge that it definitely is in contravention of [something]

2. Even if they did repeal it, the legislation would be challenged in the ECHR on the basis of [some prior precedents]

3. There is no way to sign on to just parts of the ECHR and support only some human rights and not others.

4. If the Government couldn't get the repeal legislation past the ECHR, the only other option would therefore be leaving its remit entirely.

5. The Good Friday Agreement as written today is completely dependent on both Ireland and the UK being signed up to the ECHR. The GFA-today and the ECHR are inseparable.

6. Peace in NI can only be achieved via the GFA-as-written, or alternatively an updated version which still fundamentally relies on the ECHR. Other "neutral" courts would not be suitable, it must be the ECHR.

NOTE: I am not saying that I believe these assertions, I'm summing up the arguments made by the people trying to confuse the matter in this thread. If you have information which helps us rebut any of these specific assertions one by one, could you address them individually to help us keep track? Maybe with the numbers as I've given them? I think this would help us understand exactly where the "sticking point" will be.

Not an assertion, but a matter germane to a point raised to me. One may disagree with what some scientists say and agree with others based on one's personal biases. But the ECHR has, in part, based its rulings on what it perceives as both scientific and medical advancement and understanding in these areas. That is the relevance here

I already said that I would not. The poster I was replying to took umbridge at that. Repeatedly