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.

Thanks, this is very helpful and thank you for providing a structured response. It's a big topic and there is a lot to wade through. I've started reading through these cases.

If anyone else would like to read for themselves, the cases are linked below:

Goodwin v. UK
A.P., Garçon And Nicot v. France
X and Y v. Romania
R.K. v. Hungary

As well as other relevant material referenced

Article 8

Sorry, clicked send too early

Goodwin v UK
AP, Garçon and Nicot v France
X and Y v Romania

I am not sure about R.K. v. Hungary.

Article 8 - Right to respect for privacy and family life

I doubt it’ll happen to repeal the GRA but I’d be less surprised if increase in right wing politics strains memberships in Europe

We’re seeing climate issues already and citizens will start to demand security.

All of which could start to challenge organisations set up at a different time.

UK included

If (ii) is true, and it does seem to be what has come out of the cases mentioned, it seems that safeguarding is not considered when human rights provisions are being decided.

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

This appears to say that every individual has the right to determine which sex is written on their birth certificate, and this document should be indistinguishable from a birth certificate issued at the time of their birth which stated their actual sex.

So in those situations where actual sex (not self-defined and made-up gender identity) is actually important, those individuals can obtain an official document which states that they are the opposite sex and this cannot be questioned. Under such a system, this would mean (as the Scottish Government wanted) that 'Isla Bryson' could produce a birth certificate saying he was female, and despite the presence of his penis there would be no way of preventing him from going to a women's prison.

This, of course, is one of the problems with the GRA and the way it interacts with the EA2010. How can people who are actually female be protected from people like Isla Bryson if people like him are given documents to say they are exactly the same as actual females?

Sometimes sex matters, and we do need a way of recording actual sex which cannot be changed. If some people want a nice pretty certificate which shows their 'gender identity', they can have one, but they can't change sex and it's absurd that we have a law which say they can (on paper).

I think you'll find women here are wise to this kind of disgusting emotional blackmail by now.

If repealing the GRA would result in leaving the GFA then tough. Find another way to secure peace in NI that doesn't involve throwing women's human rights in the bin.

This is like the US democrats holding Roe v Wade over the heads of women in an attempt to shut them up, not only about gender identity ideology, but for decades beforehand over pornography and prostitution.

While at the same time not doing a single thing to put women's reproductive rights on a more secure footing, so R v W ended up getting overturned and there was nothing else securing women's reproductive rights.

The dems are a bit stuffed now because they've got nothing left to threaten women into silence with.

Tough for who?

Revealing in another manner.

I suggested we bring our own human rights cases as women, as LGB and on behalf of children, and we demonstrate that the article 8 balancing in goodwin is wrong because it disproportionately breaches our human rights.

You responded to say we can't do that because human rights are fundamental!

I mean, do you even recognise women as human?

as human rights are fundamental the Convention itself does not allow for the ECHR to roll back or remove human rights

Well it has rolled back and removed our human rights, which is exactly why I suggested bringing our own cases.

Well for non-rattled people, you and planet are certainly putting a lot of time and effort into telling the silly women how wrong we are.

Quite obviously it's blackmail to tell women we can't have our rights respected or this will happen.

Why did you insert [not] into pp's post? It doesn't make any sense now.

If your last paragraph is your suggestion for achieving what you believe to be the goal of women posting here, then you have misunderstood our goal.

We don't want to do away with the category of sex, because sometimes sex matters. If we ignore sex, then women will be in an even worse position than we are with the GRA. In fact, a self-ID form of the GRA would be no different to doing away with the category of sex, which is why we oppose it.

Here are a few examples of when sex matters: prisons, intimate care for elderly and disabled people, support services for victims of rape or domestic violence, statistics about pay (the 'gender pay gap'), statistics about how medical conditions affect the sexes differently, deciding whether sex discrimination has taken place (how would you know if you don't know anyone's sex?)...

I'm sure with a bit of thought you can think of even more examples of situations in which it is important to know people's sex.

The comments about your spelling errors were in response to your patronising attitude (on my part, I can't speak for the other poster).

Yes, same here.

Though I do still find the continuous and specific misspelling of 'judgment' curious from a legal professional, even one with dysgraphia. I mean, it's not like it wouldn't crop up very often and to be fair, there are not many other spelling errors in LowKey's posts.

Tough for those attempting to emotionally blackmail us, obviously.

I don't believe you are correct that the GRA cannot be repealed without leaving ECHR but if you are correct then as I said, find another way to secure peace in NI that doesn't involve throwing women's human rights in the bin.

This is the sort of post I referenced upthread when someone asked for further information.

This post is illustrative of the sort of attitude posters are met with. I've done nothing here but set out legal facts as I understand them, as well as my own views on the importance of the Good Friday Agreement.

People are absolutely free to disagree with my analysis. But this snide dismissal because I dare to bring something I know about to a discussion where it's hugely relevant suggests some posters don't actually want to know the factual position.

Can you explain why you don't think I am correct?

Can you talk me through how you think the conversation would go in Government when someone suggested repealing the GRA?

Also, it wouldn't be tough on those engaging in what you call blackmail.

I do not live in Northern Ireland any more. My family are no longer there. I have some friends still there. But ultimately if the troubles were to restart, it is people in Northern Ireland. - including women in Northern Ireland - who will be affected, not me.

I would say a resumption of the troubles would be more tough on them than on me, no?

This.

We know both the GRA and the push for self-ID are meant as mere stepping stones to the removal of sex as a legal category altogether. We have read Yogyakarta +10.

http://yogyakartaprinciples.org/principle-31-yp10/

We know this is a queer political agenda to smerge all the boundaries and render categories meaningless. We know this is extremely bad for women, children and LGB.

You're probably not getting engagement with your question @LowKeyLockee because we already spent several years discussing this when KCL squandered £1/2M+ of public money trying to persuade people that getting rid of sex as a legal category was a good idea. Many of us here engaged with the project through surveys and correspondence and several of us attended events.

https://www.mumsnet.com/talk/womens_rights/3274586-Big-research-project-to-decide-if-we-still-need-sex-as-a-legal-category

https://www.mumsnet.com/talk/womens_rights/3391553-FLAG-Attitudes-to-Gender-Survey-Loughborough-Uni

https://www.mumsnet.com/talk/womens_rights/3401337-Attitudes-to-Gender-a-survey-being-used-to-write-a-new-gender-bill-in-the-UK

https://www.mumsnet.com/talk/surveys_students_non_profits_and_start_ups/3419517-The-future-of-legal-gender-survey

https://www.mumsnet.com/talk/womens_rights/3428851-The-Future-of-Legal-Gender

https://www.mumsnet.com/talk/womens_rights/3732308-Future-of-Legal-Gender-academic-talk

https://www.mumsnet.com/talk/womens_rights/3825365-Future-of-Legal-Gender-Survey

https://www.mumsnet.com/talk/womens_rights/3913843-Future-of-legal-gender-and-mumsnet

https://www.mumsnet.com/talk/womens_rights/4551944-abolishing-legal-sex-status-presumably-this-passed-an-ethics-committee

TL;DR: We said 'no'.

No, I don't need to.

I think it's fine for women to continue fighting for our own rights and if that throws up difficulties in other areas, for women to say,'Oh well, you'd better sort that out then because our human rights are as fundamental as everyone else's.'

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]

Quoting myself to continue to chain of thought (from page 10).

I'm not sure I fully agree with these two premises.

PP posted several cases (Goodwin, AP/Garçon/Nicot, X&Y) which seem to say that it's important on the grounds of article 8 (private life) and article 14 (discrimination) for the state to accurately record someone's gender identity.

Firstly, I'm not sure that I buy that it's essential for privacy to force the state to record information about you at all, but let me sit with that for a while.

Secondly and more importantly, some of these decisions seem quite early, and the notes have a lot of commentary about how "the scientific consensus is changing", etc, references to "post-operative transsexuals" etc, commentary on how it doesn't seem like there are any other harms etc. So I don't understand why these decisions can't be challenged on the basis that our understanding has evolved a lot over the last 20 years on how the balance of harms plays out.

Thirdly, reading article 8, it seems the whole point of it is the right to respect for private life, which includes the right to not be forced to strip naked in shared hospital wards and things like that.

Can I flip the question on its head? Why is the GRA not invalid under Article 8 on the basis that enables circumstances where women's privacy is violated (e.g. in prisons)?

Why can't it itself be challenged and we keep the ECHR?

Can I flip the question on its head? Why is the GRA not invalid under Article 8 on the basis that enables circumstances where women's privacy is violated (e.g. in prisons)?

Don't be silly, that's just women's human rights, not actual human rights

Why can't it itself be challenged and we keep the ECHR?

I think it can. It would be more cost effective for women if the government just repealed and the TRA were left to fight it. It would cost a lot less for our brilliant womens' orgs to be intervenors than it would to support claimants from our side. Also, more importantly, it would mean individual women did not have to go through a whole world of shit to secure their (and our) rights.

Funny that you suggest a poster who has backed up their views on the law is acting in bad faith, while you refuse to back up your own assessment of the law.

Why do you keep talking about women as if they are a class apart from the people impacted by the ending of the GFA, as if no women are affected by the GFA? Framing it as womens rights versus other peoples rights makes no sense unless you think women’s rights aren’t also going to be trampled by a return to the troubles.

Why do you keep doubling down on the emotional blackmail?

I would say a resumption of the troubles would be more tough on them than on me, no?

Can you actually hear yourself?

So a lot of your post is just saying why you think the ECHR was wrong. But in a discussion of what the law is, your view about what it ought to be is besides the point.

The fact remains that the case law stands and is a definitive statement of the legal position.

Of course you can take a case challenging the GRA - I don’t much fancy your chance of success but have at it. But unless and until you or someone else does succeed in reversing the case law, that law stands.

Also just a technical point but while Goodwin is twenty years old, many of the cases that have affirmed and broadened it are much more recent.

It seems like you regard any discussion of the negative impacts of a policy approach that you support to be ‘emotional blackmail’.

A decent rubric is that if you find yourself having to dismiss the real world impacts of an approach you support, rather than addressing them and arguing that they are a price worth paying, it suggests that the approach isn’t a very strong one.

Instead of accusing me of emotional blackmail, perhaps you could engage in some analysis of what would actually be worse for women: the GRA remaining and the GFA remaining intact; or the GRA being repealed and the GFA collapsing.

instead of just repeating that if the troubles return in NI that’s just ‘tough’, perhaps apply your mind to which option would actually leave women worse off.

Has there been a reputable legally qualified source cited on this Good Friday agreement distraction discourse or is the legal analysis on this subject all coming from the ramblings of one anonymous poster on this thread?

I haven’t seen anything credible but it’s a very long-winded thread; I might have missed it.