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.

Can you point to a source with the legal definition? I'm struggling to find the specific legal meaning for this phrase.

I can't find a definition for the term legal fiction on this site, which incidentally has a much more concise definition of the term mutatis mutandis than the one you posted earlier.

https://uk.practicallaw.thomsonreuters.com/6-382-4256?contextData=%28sc.Default%29&firstPage=true&transitionType=Default

A Latin expression meaning with the necessary changes having been made or with consideration of the respective differences.

Very successful derailing of the thread. Why are we talking about mutatis mutandis and legal fictions...? Just distraction techniques.

I want to properly understand the sticking point as I discussed on the previous page. Happy to do the research, happy for anyone who wants to share their own knowledge to share it here.

If you don't support repealing the GRA and similar measures or you don't want to share your knowledge for whatever reason, good for you!

"It was absurdly verbose and unnecessarily complicated as a reply to a layperson who just wants to understand[...]"

It was long precisely to provide the fullest possible explanation and answer to your point so that it could be read and followed by anybody else apart from yourself who does not have legal expertise. Where it was necessary to use specific legal terms those were italicised, making them easy to pick out and search for the meaning for

The concept of 'lateral reading' was provided for via example in my reply. Again, as an easy-to-understand way to explore the concept for those not familiar with it

And as you've mentioned (again) about my assumption that you had legal expertise or experience it would appear you seem upset and rattled that I came to that conclusion. I offer you my sincerest apologies in deriving from your reply that you had a skillset and experience that you, in reality and as confirmed by you, do not

And I would also point out that I appreciate neither your not @PencilsInSpace gibes at me for having dysgraphia. Is that your normal modus operandi, or do you merely save it for people disagree with you?

Dysgraphia, Crone. I find your repeated jibes at me for having dysgraphia deeply revealing about yourself

[1] The something in your post is not at all as unclear as you make out. The UK is bound by the ECHR as a matter of international law. Repealing the GRA (without something that replaces it which achieves essentially the same thing) would be contrary to the ECHR, and therefore unlawful in international law. The Ministerial Code and the Civil Service code prevents the Government from doing unlawful things. It's been explained repeatedly, so it ought not be confusing. Perhaps you can ask if something is confusing you?

[2] Those prior precedents wouldn't just make repeal subject to challenge, but would actually make repeal unlawful in the first place, meaning civil servants would be unable to work on such a Bill.

[3] Correct. Like all international treaties, unless specific reservations or derogations were agreed at the time the Treaty was ratified, the entire treaty is binding in international law.

[4] Correct. The Treaty of London makes provision for states to withdraw from the Council of Europe if they wish. Once the UK was not part of the ECHR it would be lawful for civil servants and ministers to repeal the GRA.

[5] Correct.

[6] Correct.

A literal meaning of a Latin phrase provided by those with legal expertise that assumes some level of legal expertise in those reading it, even if it is only cursory

As for definition of 'legal fiction' I refer you to Black's Law Dictionary and as an example where a comparison can be seen, DPP v Camplin

This was on another thread I hope they don’t mind but just easier to post

The Spanish socialists in were split apart by the vote on Gender Self ID -it was far more controversial for many Left wingers than it would appear to be here.

The Conservatives have vowed to immediately repeal gender Self Id should they get in.

Does the ECHR have teeth here? I wonder if we’ll see this tumble in other EU countries

One at a time.

Repealing the GRA (without something that replaces it which achieves essentially the same thing) would be contrary to the ECHR

Why? Which specific provisions of the GRA? What is the specific requirement that must be satisfied and on the basis of which case/precedent?

A requirement for the state to record someone's gender identity for example, could be satisfied in many ways not involving GRCs or birth certificates.

"Very successful derailing of the thread. Why are we talking about mutatis mutandis and legal fictions...?"

Because the title of this thread is "ECHR as the next battleground for the rights of women and children". And from there flowed a claim about the ECHR and the Goodwin ruling that was incorrect. And from there came more claims that were incorrect. And from there an explanation as to why they were incorrect. etc, etc, etc

Can we start again in that case? I did not follow any of the arguments about Goodwin.

Is that the case we are saying is the reason the GRA can't be repealed, either because it would be unlawful (seems an extremely high bar) or would likely be subject to legal challenge?

i.e. is that the case that someone wanting to find out more about this should go and read?

Oh good, a self-identified lawyer. What page of the thread did they pop up on? I’d like to read the rest of it.

"If you don't support repealing the GRA"

I have pointed out that under the current situation a mechanism must exist in law to allow for recognition that a person has changed private information about themselves and that, with some tests applied, must be recognised by the state

If you wish to "repeal the GRA" in a way that does not result in an unintended consequence that leads you back to where you currently are, but now with a simplified GRC-like system in place, or resulting in a situation where the UK unilaterally withdraws from the Good Friday Agreement and the Troubles return I have posed a simple question that, should the suggestion in it be followed, would achieve your goal in the simplest manner possible

To be precise on that; if a state does not hold a record of sex for each individual which is considered the overall determining factor of sex across multiple aspects of life then there is no state record of sex that can be changed. And so Goodwin and other rulings no longer apply

"Why? Which specific provisions of the GRA? What is the specific requirement that must be satisfied and on the basis of which case/precedent?"

To take the questions backwards as that provides the most coherent answer:

i) "on the basis of which case/precedent"

Goodwin v. UK, A.P., Garçon And Nicot v. France, X and Y v. Romania, and R.K. v. Hungary, amongst others. The first three are useful as showing the starting point and then evolution of the rulings, the latter as an example of the requirement in (ii)

ii) "What is the specific requirement that must be satisfied"

That all member states under the European Convention on Human Rights have a mechanism in place that recognises that every individual within each member state has the Article 8 autonomous right to define private information about themselves, in this case their sex as recorded by the state, and for that mechanism to allow for that change to state records to be made so that the change to documentation, etc, is equivalent and indistinguishable to documentation held by those who do not seek to use this mechanism (because of the overall Article 8 right of an individual to privacy)

iii) "Which specific provisions of the GRA?"

The whole of the GRA is to meet the requirements as laid out in (i) and (ii). Other statutory mechanisms could exist in its place, as it does in Ireland, or judicial mechanisms (which already exist in part) could exist in its place (which is closer to the US system in parts of the US to handling equivalent matters, although obviously the US isn't a signatory to the Convention. That's merely an example provided as a reference point to a judicial system mechanism)

Depends what they plan to replace self-ID with. If the plan is to scrap legal gender recognition entirely, then yes, that would breach the ECHR. I've no idea if the same restrictions on the Spanish Government acting unlawfully exist as in the UK, so no idea if that would be doable. If the plan is to replace self-ID with something akin to the UK model, then no, that would not breach the ECHR based on existing jurisprudence (though that jurisprudence may well continue to evolve in the future).

The fact that Spain is a monist state whereas the UK is a duallist state is also somewhat relevant, but I think the main point for now is that the ECHR doesn't require self-ID.

🐂💩

There's a bit of a problem here in asking others to share knowledge when, when they do so, they are pilloried.

But in any event, as another poster has said, Goodwin is the main case but not the only case. Goodwin established the baseline requirement for there to be a mechanism to change one's legal sex.

Subsequent cases put certain limits on any restrictions to that mechanism (for example, it is contrary to the ECHR now to require that legal change of sex can only happen after surgery).

"If the plan is to replace self-ID with something akin to the UK model, then no, that would not breach the ECHR based on existing jurisprudence (though that jurisprudence may well continue to evolve in the future)."

Just as an addendum to that. I've seen an interesting legal argument put forward that the current GRA is now in breach of an individual's Article 8 overall rights to privacy as a result of both the Garçon And Nicot, and X and Y v. Romania rulings

Those ruled that it was a breach of an individual's human rights to be forced to undergo any sterilising surgery or treatment as a condition of receiving a legal recognition of a change of sex in the former case, and that it was a breach of an individual's human rights to require an individual to undergo gender reassignment surgery before the state provided recognition of a change of sex in the latter case

Whilst the GRA does not require either, it does require that an applicant disclose private medical information about themselves detailing what sterilising treatment they have undergone, or if they haven't, why not, and what gender reassignment surgery they've undergone, and why not. Given that neither sterilising treatment and surgery, or gender reassignment surgery, can be considered factors in determining whether a GRC should be rewarded it is a compelling argument that forcing an individual to hand over to the state or its appointed authority confidential information as part of a decision making process; despite the fact that the state cannot use that information in that decision making process; constitutes a significant breach of that individual's right to privacy

Right. Back to this strange thing called 'having a life'

Laters

I’m not sure. It’s interesting to see push back start to form.

People can vote out of membership there too if the divergence with ECHR is too great.

It won’t necessarily happen, but this idea you can cajole people into a fundamental and basic lie isn’t a given.

You are a dangerous liar. Yes testosterone masculines do you know zero science at all? Kiera Bell? Any ftm trans? Basic biology of all males foetuses at 6 weeks? Male surges at 6 years and at puberty? The warnings with any hrt testosterone of severe side effects? The fact you can't use testosterone gel at all with young kids in the house who might touch your skin? I can't believe a word you say tbh.

I'm not 'upset and rattled' that you thought I had legal training. I'm a little surprised (especially as I had said I did not), since I had assumed that my obvious lack of knowledge about legal terminology and procedures would have indicated to anyone with legal training that I was not one of them. But perhaps my interest in certain legal cases which has led to me reading through a number of judgments has given me enough of an understanding to appear reasonably knowledgeable in these mattters. I suspect in reality I'm only at first year law student level though.

But I do think that your patronising tone was inappropriate if you thought you were actually replying to someone with legal training. The comments about your spelling errors were in response to your patronising attitude (on my part, I can't speak for the other poster). I save such comments for people who are trying to show off their own knowledge with a patronising sneer whilst making elementary errors (including in spelling and grammar) themselves.

You might want to think about how your posts come over to the rest of us and adjust your posting style to be informative rather than patronising.

Doubt very much they are a lawyer, certainly lack a rudimentary understanding of biology.

Are you new to discussion forums? We're not just discussing the thread title. The OP said:
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.

This thread is about the possible repeal of the GRA. The battleground referred to in the title is with regard to repealing the GRA. Go back and read the OP again to see what the thread is about.

So the quoted part is just a 'quote' out of your own head?

Of course people can choose to leave the ECHR. I've never argued otherwise.

But we should all be absolutely clear about what that means in practice. Particularly in Northern Ireland.