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.

No.

Respond to what posters have actually said, not some version in which you have inserted [words] and crossed bits out.

Goodness me.

I ought to follow my own advice

In order:

Courts can arrive at that decision, or review panels. As they currently do

Nobody asks to see somebody's birth certificate before they receive care. It can be run entirely on the same current system that is used now. People are always free to refuse being cared for or receive help from a specific individual if they do not wish it

From the evidence given by multiple RSA crisis services and refuges, they don't ask for birth certificates as a condition for being able to use the service

Birth certificates aren't used to gather that data. That data is gathered by company reporting and surveys. The government doesn't check that information against a register of births. I'd also point out that under the current system where the state does record the sex of each individual whose birth occurs and the birth must be registered, the gender pay gap reporting is done on the basis of self-identification

Those statistics are gathered from medical records and studies, not from birth certificates

Sex discrimination can occur as a matter of perception, not just on the fact of somebody's sex. Birth certificates are irrelevant in such cases and courts and tribunals do not require the claimant to provide one to prove their sex. All that is required to be proven is an act of discrimination occurs because of the perception of sex, whether that perception was correct or not

Which leads back to the original question, but I'll expand it a little. The state's method of obtaining information about your sex is by having it recorded on a birth certificate. That's it. That's all there is to it. Given that, and given how little use birth certificates see in the reality of people's lives, should the state hold a record on every individual's sex?

Homophones. To quote an old ND joke; their a beach too deal with

I catch most, but not all, and judgement/judgment I always miss because of the peculiarity of British English makes it particularly difficult. You've no idea just how much work goes into catching the more obvious ones before I hit 'Post'

"[..]find another way to secure peace in NI"

A very glib response to the Troubles. The violence lasted for 30 years and had countless casualties once you figure in the lost, and those deliberately maimed in punishment beatings and knee-cappings but never reported it for fear of further reprisal. It only ended through massive pressure and investment in the process by the international community, and especially the US and to a lesser extent the EU

The US would never agree to "find another way". They already did. It was called the peace process and from there the Good Friday Agreement. And I doubt the EU has any particular interest in helping the UK break an international peace treaty and then try and find another solution

David Allen Green, a noted lawyer and legal analyst, as well as contributor on matters of law and analysis to the New Statesman in the past and the Financial Times now has written a number of pieces on this in an approachable manner

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

Meaning that the UK as a member state of the Convention would be in breach of the Convention and would have to pay compensation to those whose Article 8 rights as determined by the ECHR to exist are breached. That's assuming the state does not put in place an alternate provision

And that's before we take into account the judicial system. They're not sovereign. They are required to follow ECHR precedent. They are required to provide relief in the cases of breaches of human rights. They have issued court orders in the past that have required changes of a person's sex registered on a birth certificate

Then have at it. It'll be interesting to see the legal argument as to which Convention Article has been breached and why. Across all member states in over 20 years no such argument has yet to be successfully made, so it will be interesting to see this proposed legal argument

As a necessary addendum; it goes without saying (which is why I didn't say it, but then I remembered just how often one particular poster was at pains to stress they have no legal expertise or experience whatsoever) that the only court that can overturn previous ECHR rulings is the ECHR. So that's where the case would have to be argued

People are certainly watching this discussion closely aren't they!

It reminds me of that ridiculous decertification research project a few years ago Pencils.

"Repealing the GRA is an efficient way of getting to the same place."

I can only refer back to my previous answer on this

"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"

That was the key bit in this case. The public facing document, the one containing an accessible record of sex, had the change of sex recorded on it and that was deemed sufficient for Poland to have met its obligations under the Convention. Note that the short-form document is one used in almost all circumstances, including a determination of legal sex, and that the change of sex was made there in a manner that made the document indistinguishable from any other short-form birth certificate

To be precise, the long-form documents would have to be sealed as they are in Poland, and would be of virtually no use. It would be the short-form documents that would be used for the determination of sex for all public purposes in law during the life of that person

That's not removing what some here see as a problem. It's just created an extra layer of paperwork which results in no change

So do you think we need a category of sex or not?

Repealing section 22 automatically places the UK in breach of the Convention

If you remember, Article 8 covers the right to privacy under which Goodwin was decided. There's no "unravelling" the right to privacy. It's fundamental to the Article, written into it's title: Right to respect for private and family life

The Convention disagrees with you as determined by the ECHR. As the UK is a signatory to the Convention treaty the Convention takes precedence in this, regardless of individual rejections of the concept

I believed that was what the poster was saying and added the [not] to make it clear that was what I was responding to. You may have taken umbridge with that. I do not care

Long-form birth certificates wouldn't be accessible to DBS checks. Under the Polish model they're documents for historical purposes only

How is it a smear by association to point out that that same argument was used in the same context and failed? I used Hungary as the example as that's the latest ruling from the ECHR on matters of change of sex and a case I had already cited

That . . . isn't a legal argument, nor does it specify which under which particular Article of the Convention you believe your rights to have been violated. As this is an Article 8 matter the argument would, by necessity, need to focus there

Meanwhile, in reality:

"ECHR as the next battleground for the rights of women and children

I have started this thread to avoid derailing a previous one.

[link to thread]

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[sic] to unwinding these laws?

[...]"

So:

Women: ECHR as the next battleground for rights
Women: It's suggested the ECHR is an impediment to repealing or changing the GRA
Women: "Is leaving the ECHR the only [solution] to unwinding these laws?"

Very well. As you insist

"Sorry are we being told to leave it or NI will start terrorism again and the troubles? I think that's very unfair blackmail"

No. That is nonsensical. It is leaving the Convention that would cause the UK to unilaterally breach the Good Friday Agreement and would see a return of the troubles. We're arguing not to leave it

Better?

I do not believe that the state (being the King, his government, his privy council, Parliament, and the devolved legislatures) needs to hold that information themselves to the degree of holding information on each individual's specific sex

After all, the state doesn't record ethnicity on birth certificates. As an example, my birth certificate does not record that I am white and ethnically Jewish. Yet despite that lack of recording, the Equality Act and prior to that the Race Relations Act makes it illegal to discriminate against somebody on the basis of their ethnicity (although the effectiveness of such anti-discrimination law is debatable, but then that's true for sex discrimination law). Ethnicity can be a determining factor in whether a crime has been motivated by hate, despite the fact that ethnicity is not recorded on birth certificates. Therefore it is more than possible to have a shared characteristic amongst a group of people (a class) that can be effectively recognised for use, but is not information gathered on each individual whose birth is registered with the state via that registration process

No, she means are we being told to 'leave it' in the way that threatening men are always telling us to 'leave it' - or else.