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.

Do you mean aside from the text of the Good Friday Agreement itself?

https://davidallengreen.com/2022/08/how-the-good-friday-agreement-restricts-what-the-united-kingdom-government-can-do-with-the-echr/

https://amp.theguardian.com/uk-news/2015/may/12/scrapping-human-rights-act-would-breach-good-friday-agreement

https://ukconstitutionallaw.org/2020/10/07/christopher-mccrudden-why-the-european-union-must-insist-that-the-uk-remains-committed-to-the-european-convention-on-human-rights/

https://www.chathamhouse.org/2023/03/uk-must-not-sleepwalk-leaving-echr

@LowKeyLockee posted earlier that someone called David Allen Green (no idea who he is - they didn't explain) wrote something about "How the Good Friday Agreement means the United Kingdom government cannot leave the ECHR (without breaching the Good Friday Agreement)". But they didn't provide a link.

In response to me saying "It appears to me that repeal of the GRA would not result in breaches of the ECHR" they also claimed "That's not what the experts say", citing David Allen Green (whoever he is) as a source again, but once again didn't provide a link. So DAG seems to have commented that the GFA would be breached by leaving the ECHR and he's also said that repeal of the GRA would result in breaches of the ECHR. But no links.

So, in short, nothing credible. Just speculation as far as I can see. I'm sure Lockee would have posted links if they had them.

I see I've crossposted with @PlanetJanette who may have provided the missing links.

I haven't seen anything credible about how scrapping the GRA would force us to leave the ECHR though.

Except for the case law of the ECHR which makes clear - across multiple cases - that Article 8 encompasses a right to legally change sex?

Which is where we started. This needs to be challenged. It's so insane when put baldly like that.

'People have the right to change sex.'

They have the right to do something legally which is impossible physically, regardless of the harm to the rest of society. How did we ever get here? (That's a rhetorical question, obviously it's because of the misogynistic and homophobic rulings in the ECHR.)

I’ve already said you’re free to challenge the GRA.

But until you do - successfully- the case law stands and repealing the GRA is not possible within the ECHR.

Agree. We could have the legal right to not age but it’s a biological lie

I hope society pushes back on this, especially women

You are telling us that if women fight for our human rights then a bunch of men in NI will start blowing shit up again.

Your attempts at emotional blackmail could not be more transparent.

The approach I support is to repeal the GRA while remaining in ECHR.

The only real world impact of this that has been explained so far is that death certificates would 'misgender' a few individuals. But your family already knows what sex you are and you'll be dead anyway. You can't stop people from misgendering you after you are dead.

That is what is on one side of the balance.

On the other side is women being housed with sexually violent men in prisons, locked psychiatric wards and other settings where they do not have the freedom to leave, women being unable to request same sex intimate care, or counsellors or therapists, women being unable to access single sex services to recover from male violence ...

Article 8 rights are always qualified by the requirement to respect other people's rights and freedoms. Clearly the balance in goodwin is wrong.

It is you who is dismissing the real world impacts of the GRA - an approach that you support. Why don't you just come right out and say that these horrific breaches of women's human rights are a price worth paying so that a few deluded individuals can pretend they can control how they are referred to after their death?

You are telling us that if women fight for our human rights then a bunch of men in NI will start blowing shit up again.

Women accept whatever men want or other men will be violent.

The sex class that is much less likely to be violent just has to roll over or take the blame.

I agree, this is where I am at based on trying to pierce together the readings.

I agree that there are cases/precedent that relate to gender reassignment, transsexuality, gender identity etc, and that these seem to have been resolved on the basis, more or less, that "on balance, yes, xyz does violate this trans person's right to privacy or non-discrimination, and there's not much to counterbalance on the other side".

But the ECHR rights seem apparently to be explicitly not intended as hierarchical and there may be conflicts between them. I think that seems to be recognised by legal scholars from a quick read and there is no "Right X trumps Right Y" auto-adjudication.

The arguments on the repeal-the-GRA side can also be expressed in terms of ECHR rights. It's inherently one where there's a conflict. The current GRA resolves it one way, repealing it would resolve it another way. It's not clear-cut enough to me to justify not even trying because it's "unlawful", as someone tried to claim earlier.

GRA cannot be repealed while remaining within the ECHR with the case law as it stands. It is simply and straightforwardly unlawful.

Sticking your head in the sand on that point doesn't change legal reality.

So you can:

(1) Challenge the case law - I think your chances of success are minuscule but you're free to try - but unless and until you succeed, it will remain unlawful to repeal the GRA.

(2) Leave the ECHR, and throw the GFA out the window.

There is no option 3 that involves repealing the GRA from within the ECHR without a massive shift in the court's jurisprudence.

That is a misreading of the legal position.

Thinking a case was wrongly decided doesn't mean that case is not a statement of the law as it stands.

Across multiple cases, the court has established an Article 8 right to change legal sex. I understand many on here disagree with that. But disagreeing with it doesn't change the fact that the law is really clear on the baseline threshold that must be met for states to comply with the ECHR.

That is why it would simply not be possible for a civil servant working for the Government to be a Bill Manager, for example, to take through repeal legislation, or for a Government parliamentary drafter to draft the legislation. Doing so would be a clear breach of the civil service code.

Yes, we intend to challenge the case law that shits all over the human rights of women, children and LGB.

Glad that's all clear now.

That seems like the place to focus!

Thanks to the pp for providing the links; they are much more convincing than writing walls of emotional-blackmail text. I skimmed a few of them and provisionally convinced that leaving the ECHR is a nonstarter.

But it doesn't seem that the "right" to change the sex on one's birth certificate is as straightforwardly enforced by the ECHR as pp made it out to be. I've only skimmed this very relevant document but it seems like the overall message is that you can't arbitrarily bestow this "right" on some while denying it to others.

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

And I note that you have not taken a single moment anywhere on this thread to reflect on or address these serious human rights breaches caused by the GRA.

OK. If we're clear that unless and until you succeed either the GRA has to remain, or we have to leave the ECHR, then knock yourself out.

Though I'm not sure other posters are on board with your strategy, going by the number of posters saying to 'just repeal it'.

Cool, thanks.

Repealing the GRA is an efficient way of getting to the same place. Let the TRA put their hands in their pockets for a change.

Apart from the minor hiccup that Ministers and Civil Servants are barred from acting unlawfully.

From the document linked above, this ECHR case from 2022 seems relevant.

This case concerned applications by a transgender man to have reference to his gender assigned at birth removed from his birth certificate, or to have a new birth certificate issued. The applicant also complained that he was discriminated against vis-à-vis adopted children, who were issued new birth certificates.
The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding that the Polish authorities had acted within their broad discretion (“margin of appreciation”), striking a balance between the relevant interests in the current case. It noted, in particular, that the applicant’s short-form birth certificate and identity documents indicated his reassigned gender only, and that the long-form birth certificate was not accessible to the public and was required only in rare circumstances. Moreover, overall, the applicant had not demonstrated any negative consequences as a result of the refusals by the Polish authorities. The Court also held that there had been no violation of Article 14 (prohibition of discrimination) of the Convention, finding that the situation of the applicant and that of adopted children were insufficiently similar to make the argument that he had suffered discrimination

Whether they acted unlawfully or not would be for the ECHR to decide.

We have two decades' worth of evidence to show that the GRA has seriously breached the human rights of women and girls, LGB people, and children.

And it has undermined safeguarding, bypassing DBS checks.

Thank goodness, a light in the legal tunnel. Perhaps we can win. If not though I'd rather leave the echr than uphold twaw. It's regressive bad law to allow men to identify as women and harms biological women. If the echr doesn't recognise that then we should leave.

Absolutely.

Article 3 of the UN convention on the rights of the child says that the best interests of the child must be a top priority in all decisions and actions that
affect children.

https://www.unicef.org.uk/wp-content/uploads/2019/10/UNCRC_summary-1_1.pdf

The UK ratified this convention in 1991. ECHR cannot ignore this and neither will a forum mostly made up of mothers.

No, it wouldn't.

Whether a proposed route constitutes unlawful action is for Government lawyers to advise and the Attorney General to determine. That is the determination that decides whether Ministers and Civil Servants can pursue a specific action.