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.

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

This makes perfect sense and she is right, this is very unfair blackmail.

No, we won't leave it.
Bring it.

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

But there are certain pieces of information that are not considered private and are considered biologically immutable - notably age.

Age is not considered private information from the POV of the state - it is on ID, driving licences and so on, as it has been determined that there are uses to the rest of society for knowing it accurately.

So it is not the case that because of the ECHR, everyone everywhere has the ability to totally write anything they want in their state-held documentation.

The ECHR rights are not "trump cards". It is a framework of rights that are worthy of consideration in court, and the function of the courts is partially to decide on cases involving a conflict of two or more rights.

Can we go back to Orban and Hungary - did they try to do something similar? Seems to me that that's what we can look at, no? I'm going to read up more on their attempts.

And for the record, I'm not okay with the option of a secret record of the true sex and a public record of the self-id "sex", indistinguishable from natal sex.

At that point PP is right in a way, that would be absolutely useless and not even worth bothering to store.

Honestly, my somewhat-flippant other thread accurately reflects my position - store as many genders as you want on as many certificates as you want, just clearly separately from sex

Has anyone gone to the ECHR demanding to be able to falsify their age on their birth certificate?

This man took his case to change his age to a local court which ruled against him. As far as I know he didn't take it to the ECHR.

https://www.bbc.co.uk/news/world-europe-46425774

Age is the most obvious comparator to sex as an attribute that applies to everyone and can't be changed. And many of the objections to changing age also apply to sex.

That was not how I read it. Which is why I provided additional clarification as to the point that I was answering. So you've just spent an awful lot of time attempting to derail this thread arguing that I shouldn't have provided that clarification

Pointless, wasn't it? And a failure, to boot

To reiterate my previous point and to make it more obvious:

Come back with that sentiment when you're the victim of the Troubles, either directly or via a close relative. Please try and tell all the people who lived through the Troubles and don't want them to return that our desire for continued peace is 'blackmail'. I'm sure they'd be as amused as I am to hear it

Oh dear. I've made an assumption again, haven't I? I made an assumption you were capable of following a plain English, simple argument. I add my sincerest apologies to all my other apologies to you regarding my assumptions about competence

That argument is incorrect, as I've already laid out elsewhere

Should somebody being a case to the ECHR being able to show that they experience the passage of time at a greater or slower rate than 1 sec/sec, and that they can point to any body of scientific literature to support that claim, and can point to other societies that have also accepted that this has happened and have shown a growing acceptance of it (as happened in the Goodwin case), they may then win that case should they also then show that a breach of their fundamental human rights has occurred and as a result they've experienced discrimination by the state

Until then, the comparison does not stand up

Age is a great comparator

You cannot biologically change your age, and we use it as part of safeguarding.

People might want to look younger but it’s a fantasy, and sometimes people will go to extreme lengths to do that

Changing your age and sex should be the same, they are both not biologically possible.

Yes. To avoid spurious claims of 'spam' and 'derailing' I won't cite the case again as I've already amply cited it elsewhere in this thread, but the precis of the situation was that Orbán used that argument during his successful campaign to change Hungarian law to ban legal recognition of change of sex. The Constitutional Court struck that down. Orbán again tried to make that argument in the ECHR case through Ordo Iuris, an extremist-right Catholic organisation based in Poland that operates in multiple states in Europe, and to whom Orbán has very close ties to and works through in international efforts to proselytise their extremist viewpoints

The ECHR did not agree with this argument and, in its ruling, also pointed out that a member state recognising a change of sex is a positive obligation under Article 8 of the Convention and that the process must be quick, transparent and accessible. From the ruling:

"The relevant Convention principles concerning the State’s positive obligations have been summarised in the Court’s judgment in the case of Hämäläinen (cited above, §§ 65-68). Furthermore, the Court has stated in its case-law on legal gender recognition, that what member States are expected to do under Article 8 of the Convention is to provide quick, transparent and accessible procedures for changing the registered “sex/gender marker” of transgender people (see X v. the former Yugoslav Republic of Macedonia, no. 29683/16, § 70, 17 January 2019). [...]"

This is all very familiar.

That is incorrect, as age via a biological framework is different for each person as considered through the lens of telomere loss

The correct scientific field here would be physics as age is determined as a matter of a repeating pattern of approx. one revolution of Earth around the Sun starting from the date the person was born, thereby providing a count of age based on that metric. As all people on Earth rotate around the sun's axis at the same rate, and all people experience time at the same rate of 1 sec/sec, age calculation works the same for all people who use the "Earth rotating around the sun" as their metric of time equalling one year passing

Age 12 years v 56 years

Chromosomes XX or XY (in high majority)

You can’t change either, well if we had sense as a society we’d realise that for both.

Well men would, it seems they are pushing harder on this.

The matter of chromosomes was addressed in Goodwin

We can use biological sex again.

Whatever laws have been created to enable this fantasy can be overturned.

It’s built on a lie and they tend to get questioned.

The wonderful Maya Forstater is a great example of pushing back through law.

Women and girls keep going. It’s all useful.

Any definition of sex collected by the state is a matter of private information about an individual and falls under Article 8 of the Convention

And for the record, I'm not okay with the option of a secret record of the true sex and a public record of the self-id "sex", indistinguishable from natal sex.

I think "secret" is not really the case though despite some attempts from pp to muddy the waters. If the real sex recorded on the real long form birth certificate is used for DBS checks and is used by the prison system, then that's already a lot of the problem solved. If the real birth certificate can be requested as proof of biological sex from the person themselves for jobs which are restricted to women only (a reminder that no one disputes the Equality Act allows for jobs to be restricted to women only) then that's another big piece of it.

The information about their real sex doesn't have to be secret - it's "private" as in, other people can't apply to the State to see copies of the real birth certificate, only the edited one.

But as long as the real birth certificate is accessible to the police and the prison system, and employers, care homes etc. can request the real birth certificate from the person themselves, not from the State and share information about the person's real sex wherever it is relevant to safeguarding, that's the biggest problems created by the GRA solved without having to repeal the apparent human right to have vanity birth certificates.

Laws can change. They do all the time.

We can re establish sex based rights.

Twenty years of jurisprudence in an international court do not change all the time though.

It can happen if the public will is there. We vote and get change.

And it’s growing all the time because we are now seeing the reality of what it is to have men in female spaces.

I mean, I guess the point of the ECHR is that we cannot in fact "vote and get change" because Parliament is no longer sovereign.

Which I do find problematic as a general rule, separate from this question of repealing the GRA which I think should be pursued by any means possible (ECHR or no ECHR).

But we can vote to become sovereign.

It just takes public will.

So when I say vote and get change that’s what I mean, if the public want something strongly enough it can happen