Page 14 | ECHR as the next battleground for the rights of women and children

Ingenieur · 2023-07-22T09:59:15+00:00

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 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.

PlanetJanette · 24/07/2023 23:18

DarkDayforMN · 24/07/2023 22:11

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

It rather proves the point though. Poland won precisely because they had a means of allowing people to change their legal sex. Essentially the court found that withholding that change from a single document which was not available to the public and not needed for practical use was permitted.

If people here were suggesting changing the GRA to say that birth sex must still be recorded on, e.g. long form birth certificates, then that would almost certainty be lawful.

But that's not what's being suggested here. Here we have suggestions of full repeal of the GRA with no replacement.

DarkDayforMN · 24/07/2023 23:30

If people here were suggesting changing the GRA to say that birth sex must still be recorded on, e.g. long form birth certificates, then that would almost certainty be lawful.

I think that is worth discussing; it’s certainly something I’ve thought about before but I don’t know enough about the practical implications. I have always thought that as long as there is some clear unalterable legal record of the person’s actual sex I don’t care if people get vanity birth certificates.

Addressed to the thread, not to any particular poster: could the problems created by the GRA for women’s spaces, jobs reserved for women, DBS checks, prisons, sports teams etc. be resolved by requiring the actual sex to be retained on long form birth certificates?

Obviously a reform like that would have to go in tandem with reform of the Equality Act to make it clear that references to sex in the Equality Act actually mean sex.

DarkDayforMN · 24/07/2023 23:52

Obviously a reform like that would have to go in tandem with reform of the Equality Act to make it clear that references to sex in the Equality Act actually mean sex.

If accurate long form birth certificates would actually resolve the problem, I'd even be in favour of self-ID for short form birth certificates. And let people put any gender they want, including nonbinary and all the Tumblrgenders.

If vanity birth certificates absolutely have to be a thing then it's silly to put any restrictions on them, provided an admin fee is paid to cover the cost of all the silliness. But the vanity document can't have practical implications.

PlanetJanette · 25/07/2023 00:04

DarkDayforMN · 24/07/2023 23:52

Obviously a reform like that would have to go in tandem with reform of the Equality Act to make it clear that references to sex in the Equality Act actually mean sex.

If accurate long form birth certificates would actually resolve the problem, I'd even be in favour of self-ID for short form birth certificates. And let people put any gender they want, including nonbinary and all the Tumblrgenders.

If vanity birth certificates absolutely have to be a thing then it's silly to put any restrictions on them, provided an admin fee is paid to cover the cost of all the silliness. But the vanity document can't have practical implications.

I think you're misunderstanding the Polish case. The reason Poland won was because the practical implications of its approach was that the legal change of sex reflected in the short form birth certificate had full legal effect. The long form birth certificate had status as a historical record but was not necessary in most scenarios - the short form birth cert sufficed for almost all purposes.

If you're proposing allowing gender recognition on some inconsequential bit of paper, but not on the official documentation that is in practical use for most purposes, then you're back in unlawful territory.

PencilsInSpace · 25/07/2023 00:06

DarkDayforMN · 24/07/2023 23:30

If people here were suggesting changing the GRA to say that birth sex must still be recorded on, e.g. long form birth certificates, then that would almost certainty be lawful.

I think that is worth discussing; it’s certainly something I’ve thought about before but I don’t know enough about the practical implications. I have always thought that as long as there is some clear unalterable legal record of the person’s actual sex I don’t care if people get vanity birth certificates.

Addressed to the thread, not to any particular poster: could the problems created by the GRA for women’s spaces, jobs reserved for women, DBS checks, prisons, sports teams etc. be resolved by requiring the actual sex to be retained on long form birth certificates?

Obviously a reform like that would have to go in tandem with reform of the Equality Act to make it clear that references to sex in the Equality Act actually mean sex.

could the problems created by the GRA for women’s spaces, jobs reserved for women, DBS checks, prisons, sports teams etc. be resolved by requiring the actual sex to be retained on long form birth certificates?

Only if it was legal to request a long birth certificate as evidence of sex in all the contexts where sex matters, and to share that information with everyone who needs to know in order for them to do their job and safeguard women and children.

Section 22 of the GRA makes it a criminal offence to share such information. It's the most anti-safeguarding piece of law I have ever seen.

https://www.legislation.gov.uk/ukpga/2004/7/section/22

If we can't repeal the GRA then we must at least repeal section 22. If we repeal section 22 then the whole GRA might as well not exist. The sole remaining function of the GRA in 2023 is to keep a person's sex secret in contexts where sex really matters.

LowKeyLockee · 25/07/2023 00:08

Boomboom22 · 24/07/2023 13:33

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.

Show quote history

It's used in the treatment of abnormally low serum testosterone in natal women, something that can cause serious health issues if left untreated including fatigue and depression. It does not cause masculinisation in such cases

Perhaps it would be better if you researched your unsubstantiated claims about medication and uses before attempting to call others 'liars' for pointing out facts you find inconvenient to your narrative

LowKeyLockee · 25/07/2023 00:10

OldCrone · 24/07/2023 13:43

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.

Show quote history

"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."

My my. There would be those who would say your entire tone is, how do you put it, sneering and condescending? Or is it patronising? Regardless, I do not find your attempts to derail this thread to be of any particular use or merit

DarkDayforMN · 25/07/2023 00:13

If we can't repeal the GRA then we must at least repeal section 22.

I wonder if this might be a more feasible focus of efforts than repealing the whole GRA. Although "repeal the GRA" is a much better slogan.

If you're proposing allowing gender recognition on some inconsequential bit of paper, but not on the official documentation that is in practical use for most purposes, then you're back in unlawful territory.

I don't care about "most purposes" - I care about the single sex exemptions in the Equality Act, which no one disputes the legality of. Changing long form birth certificates makes it difficult to apply the single sex exemptions.

LowKeyLockee · 25/07/2023 00:14

OldCrone · 24/07/2023 13:53

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.

Show quote history

No, this thread is clearly titled, "ECHR as the next battleground for the rights of women and children". Presumabely if the OP wished the thread to be specifically about the repeal of the GRA they would have titled it as such. Perhaps they may wish to contact the mods to have the title changed to avoid any confusion in that regard? Or perhaps they entirely meant the title that they used

LowKeyLockee · 25/07/2023 00:16

OldCrone · 24/07/2023 13:54

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

Show quote history

Single quotation marks, Crone. I presume you have at least an understanding of the difference between the use of single and double quotation marks? Or am I presumptuous in that presumption?

DarkDayforMN · 25/07/2023 00:18

I don't care about "most purposes" - I care about the single sex exemptions in the Equality Act, which no one disputes the legality of. Changing long form birth certificates makes it difficult to apply the single sex exemptions.

and just to be excruciatingly clear and repetitive, single sex here means single sex and is predicated on a reformed Equality Act.

PencilsInSpace · 25/07/2023 00:18

Basically lots of us here reject the notion that sex is private information.

In practical terms it can't be anyway because we all have eyes and ears.

In legal terms it can't be because otherwise women would have no legal rights on the basis of sex.

LowKeyLockee · 25/07/2023 00:22

OldCrone · 24/07/2023 16:40

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).

Show quote history

The moment the state records 'sex' as a matter of information about its citizens for use in law that use of it becomes a matter of private information under Article 8 of the Convention. There's no fancy dancing around it. Orbán tried that and his own constitutional court struck down that argument as being incompatible with ECHR precedent

Which leads back to a question I posed before. Why does the state need to record each individual's sex? If it turns out they don't have a need and from there don't collect that information then the state is no longer under obligation to change information it does not possess

DarkDayforMN · 25/07/2023 00:27

Hmm it seemed like the discussion was making progress and then - SPAM!

LowKeyLockee · 25/07/2023 00:29

PencilsInSpace · 24/07/2023 16:51

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.

Show quote history

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

It is not blackmail to point out that we don't want a return to terror on the streets of the UK. Of knee-capping. You know of knee-capping? No? One of the favoured methods of British and Irish terrorist groups to maintain discipline and punish dissent. I'd only advise looking up the details if you have a strong stomach though. Perhaps you object to it being pointed out that bombing is indiscriminate. That it kills children. The official numbers say 257 children were killed as a result of terrorist bombings. 1,533 if you count those under 25

1 child's death is too much. 257 is an obscenity. 1,533 people slaughtered before ever getting a chance to truly live is a vileness beyond the ability of the English language to fully express

So you'll forgive us for fighting to never to return to those times. And if you can't? We're still not going to stop fighting to ensure that the Troubles never return

PencilsInSpace · 25/07/2023 00:29

LowKeyLockee · 25/07/2023 00:14

No, this thread is clearly titled, "ECHR as the next battleground for the rights of women and children". Presumabely if the OP wished the thread to be specifically about the repeal of the GRA they would have titled it as such. Perhaps they may wish to contact the mods to have the title changed to avoid any confusion in that regard? Or perhaps they entirely meant the title that they used

Show quote history

Presumabely if the OP wished the thread to be specifically about the repeal of the GRA they would have titled it as such.

Why the hell else would any of us be talking about this?

Women: repeal the GRA
You: you can't because ECHR
Women: OK, so what's the deal with ECHR?
You: Here's some obfuscation. Now you mustn't talk about repealing the GRA because this is a discussion about ECHR.

OldCrone · 25/07/2023 00:31

I think the best strategy is to just scroll past their posts @DarkDayforMN. I was going to reply as they were quoting me, but it's utterly futile. They still think it's unnecessary to record sex despite me posting a long explanation of why it's necessary.

LowKeyLockee · 25/07/2023 00:32

PencilsInSpace · 24/07/2023 17:13

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.

Show quote history

An interesting legal argument. Could you define how your ability to define your own private information within the autonomy of your own personal sphere has been affected by Goodwin? Because that is the matter the Court made its decision on. That is the right you'd have to claim is being infringed in your case

PencilsInSpace · 25/07/2023 00:33

LowKeyLockee · 25/07/2023 00:22

The moment the state records 'sex' as a matter of information about its citizens for use in law that use of it becomes a matter of private information under Article 8 of the Convention. There's no fancy dancing around it. Orbán tried that and his own constitutional court struck down that argument as being incompatible with ECHR precedent

Which leads back to a question I posed before. Why does the state need to record each individual's sex? If it turns out they don't have a need and from there don't collect that information then the state is no longer under obligation to change information it does not possess

Show quote history

Here come the smears by association.

LowKeyLockee · 25/07/2023 00:34

PencilsInSpace · 24/07/2023 17:16

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.

Show quote history

I am merely one person. And whilst I carry more weight around my middle than I should, I can assure you that nobody has ever mistaken me for a planet

PencilsInSpace · 25/07/2023 00:34

LowKeyLockee · 25/07/2023 00:29

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

It is not blackmail to point out that we don't want a return to terror on the streets of the UK. Of knee-capping. You know of knee-capping? No? One of the favoured methods of British and Irish terrorist groups to maintain discipline and punish dissent. I'd only advise looking up the details if you have a strong stomach though. Perhaps you object to it being pointed out that bombing is indiscriminate. That it kills children. The official numbers say 257 children were killed as a result of terrorist bombings. 1,533 if you count those under 25

1 child's death is too much. 257 is an obscenity. 1,533 people slaughtered before ever getting a chance to truly live is a vileness beyond the ability of the English language to fully express

So you'll forgive us for fighting to never to return to those times. And if you can't? We're still not going to stop fighting to ensure that the Troubles never return

Show quote history

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

PencilsInSpace · 25/07/2023 00:36

OldCrone · 25/07/2023 00:31

I think the best strategy is to just scroll past their posts @DarkDayforMN. I was going to reply as they were quoting me, but it's utterly futile. They still think it's unnecessary to record sex despite me posting a long explanation of why it's necessary.

Yes, I will join you.

LowKeyLockee · 25/07/2023 00:37

PencilsInSpace · 24/07/2023 17:18

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.

Show quote history

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

Does that help you understand why I added [not] to the quote? I wished to make it clear the point I was responding to, which is the point I believe the poster I quoted was making

OldCrone · 25/07/2023 00:38

LowKeyLockee · 25/07/2023 00:32

An interesting legal argument. Could you define how your ability to define your own private information within the autonomy of your own personal sphere has been affected by Goodwin? Because that is the matter the Court made its decision on. That is the right you'd have to claim is being infringed in your case

Show quote history

No it's not. People choosing which sex they are (legally - actual sex being immutable) can infringe the rights of others. Women are less safe in various circumstances if any man has the right to be legally female.

DarkDayforMN · 25/07/2023 00:41

Well, I think a proposal for reforming the GRA rather than fully repealing it has emerged from the discussion:

retain sex on long form birth certificates, as Poland do (confirmed legal by ECHR)
repeal section 22.

I hope people will see past the spammers and talk about this and other possible routes forward.

It's utterly insane that all legal records of someone's sex can be erased, but if the information is retained on long form birth certificates then at least the problems with DBS checks are easily solved, and it's a big step to solving the issues in prisons.

I think reforming the Equality Act is a higher priority, but there's already been a huge amount of progress made around getting that on the agenda.