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.

Lots of really interesting thoughts so far, and lots of reading for me, thank you everyone.

I'm still really interested in the angle pit forward before about the balance of countries being able to legislate domestically for certain things as their right (one of the considerations of how the ECHR makes is judgements) and this idea that things then can't move the other way...

As an example, the recent Building Safety Act amended the Defective Premises Act to create a retrospective liability and legal enforcement framework for dwellings. This would seem counter to Article 7 which makes retroactive laws illegal, but it was nonetheless enacted so it cannot be that laws contravening the ECHR cannot be enacted.

This is right. Parliament is sovereign and can legislate contrary to the ECHR. The HRA explicitly acknowledges this and provides for declarations of incompatibility

Thanks @AgathaSpencerGregson , so maybe the ECHR angle is less of a barrier than one might expect.

That's not really what declarations of incompatibility are for.

The HRA says that courts must, as far as possible, interpret laws in a way that is compatible with convention rights.

Where that is not possible, the higher courts must still apply the law but they can issue a declaration of incompatibility. It's a way for the court to give the government a heads up that the law breaches human rights and so they might want to change it.

It's up to parliament whether they change the law but they usually do. If not, the complainant can escalate to ECHR.

There are barriers, partly legal and partly political. Breach of a treaty (which is what the ECHR is) contravenes international law. Domestic courts take the view that such breaches are undesirable and domestic law should be construed so as to be compatible with international law (and I think I’m right in saying the HRA also requires domestic law to be construed compatibly with convention rights). From a political perspective, it is difficult and controversial for the government to issue a declaration of incompatibility and proceed to bring legislation forwards despite this. The guardian readers are likely to get terribly upset, as we see over Rwanda. Less trivially, it can result on political difficulties with other states too.

You are right re terminology but HRA does permit govt to state legislation is incompatible with ECHR rights and proceed with it despite that. But that is difficult for govts to do

They can - a minister can make a statement that they are unable to make a statemement of compatibility but nevertheless wish to proceed with the legislation.

That doesn't exempt them from being taken to ECHR though.

No, indeed.

Overall I think it would be a bad move to pull out of ECHR, or to try chipping away at its influence, find loopholes or whatever. I think we'd be throwing the baby out with the bathwater.

Human rights are for everyone. ECHR is for us and our rights, just as much as it is for trans rights, so I vote we use it.

@JanesLittleGirl Yes. Both of them (there's two agreements that make up the Good Friday Agreement)

Which is at the point that the ECHR starts awarding damages to claimants for breaches of their human rights. As happened recently with Hungry and their breaching of the human right to the autonomy of an individual within their personal sphere to define aspects of the private information

"As I understand it, the GRA was enacted because the ECHR told Britain that preventing a man from marrying another man was contrary to his human rights as a homosexual person. So, rather than legalise gay marriage, Britain created the legal fiction that a man could be a woman."

A common misunderstanding. The ruling was that individuals have the autonomous right within their own personal sphere to define their own private information and have that information recognised and recorded accurately by the state under Article 8 of the Convention. Gender identity (argued back at the time of Goodwin by the UK as sexual identity within law, or simply sex for the purposes of the law as recorded on birth certificates) was determined to be one of many aspects of private information that must be recognised by the state

Having lived in a couple of countries that maintain human rights that are as good outside the ECHR that part doesn’t worry me as much. It is doable and you probably can have more control

The issues for me are the GFA, I’m not sure which posts are correct

Also wondering if we need to exit to ensure sex based rights for women and girls anyway

I don’t have enough information, might start with Reith lecture mentioned below

From David Allen Green:

"How the Good Friday Agreement means the United Kingdom government cannot leave the ECHR (without breaching the Good Friday Agreement)

[...]

The difficulty – if that is the correct word – is the Good Friday Agreement.
This thirty-six page document – which is not as read as widely as it should be – contains a number of express provisions in respect of the ECHR:

“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.”

“There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including: […] (b) the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission […]”

“The Assembly will have authority to pass primary legislation for Northern Ireland in devolved areas, subject to: (a) the ECHR […]”

And so on.

The ECHR is not just mentioned in passing in a recital.

The ECHR is integral to the Good Friday Agreement – and that rights under the ECHR can be relied upon in Northern Ireland is a fundamental part of the agreement.

This means that if the United Kingdom (including Northern Ireland) leaves the ECHR there will be breaches of the Good Friday Agreement."

I believe to leave the ECHR, all four home nations would have to vote for a majority (50% +1) in favour. Nothing less we'd do.

In addition to the armageddon of a trade war with Brussels as leaving would fold the Withdrawal Agreement signed by Johnson precipitating No Deal, the hardest of Brexits, and a serious conflagration with the US.

It's not happening. GCs and the most radical of Brexiters need to think of other solutions. Ditto those who want to stem small boats migration with Rwanda type deals.

Time for constructive and imaginative thinking, not pipe dreams.

No idea why there's a link to The Belfast Agreement in my last post as it's not germane to it. More useful in my previous post

@RealityFan

Thanks for responding. This thread isn't so much about wanting to leave the ECHR, it's about understanding the mechanisms at play which frustrate the goal of women's rights and children's rights. If we can understand these then we are in a position to fight the next front of the battle.

The reference in my original post was more of a question, i.e. is leaving the only way towards undoing the harm done so far, or is there another option.

The discussion about the impacts of leaving are useful, however, because it allows everyone to appreciate what is at stake.

It seems to me that some key decisions of the court have been made on misapprehensions or are otherwise on unfirm legal ground, and it is equally useful to discuss these.

Sure, understood. There will have to be another way found, leaving the ECHR would truly make us pariahs. And the need for 50% +1 votes in all four home nations makes this premise nigh on impossible. Brexit is child's play in comparison.

Yes, I mentioned earlier that the GRA was no longer required to remedy the breach of Article 12, since we now have same sex marriage. I also mentioned the breach of Article 8 in the Goodwin ruling. And I also pointed out that the main complaints of the applicant were about discrimination due to being transsexual (now covered by the EA2010) and the discrepancy in pension ages (no longer applicable).

As far as I can see it doesn't say that 'gender identity' must be recognised by the state. If I've got that wrong perhaps you could tell me which paragraph refers to this.

It appears to me that repeal of the GRA would not result in breaches of the ECHR.

"It appears to me that repeal of the GRA would not result in breaches of the ECHR."

That's not what the experts say. And at the end of the day I'll take what an acknowledged legal expert, one of the best legal minds in the UK, and one of the best lawyers in the country, such as David Allen Green, as being of considerable authority. Certainly over somebody whose credentials in such regards cannot be checked

"As far as I can see it doesn't say that 'gender identity' must be recognised by the state. If I've got that wrong perhaps you could tell me which paragraph refers to this."

Para 71, 72-75, 76-79. and 90-93 when read in whole and read in regards to the UK argument as presented in para 64-67. I assume you understand that legal judgements are to be read both in whole across relevant paragraphs, in part, and in regards to arguments put forward and the necessity of employing lateral reading within a judgement, especially with judgements that fall under community jurisprudence

And of course, subsequent ECHR judgements have upheld that. See inter alia A.P., Garçon And Nicot v. France, X and Y v. Romania, and R.K. v. Hungary

@Ingenieur The paragraph from the summary you highlighted in your OP is the weak spot.

The bit in the actual judgment says:

No concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost.

https://www.bailii.org/eu/cases/ECHR/2002/588.html

By 'society' they of course mean women. Women may reasonably be expected to tolerate a certain inconvenience. This was never going to inconvenience men.

No hardship or detriment was demonstrated because nobody consulted us. Over the past two decades there have proven to be huge hardships and detriments to us, as well as to children and LGB.

Also, society has changed a lot since 2004. It would be hard to show that this legal lie was still necessary to enable trans people to 'live in dignity and worth in accordance with their sexual identity' - especially as almost none of them bother getting a GRC.

Article 8 is a qualified right, meaning that the government can interfere with your article 8 rights if it is necessary and if it's a proportionate means of achieving a legitimate aim. A balance must be struck between the individual's right to private life and the needs of society, such as protecting public safety, health and morals or the rights and freedoms of other people.

I say that balance has shifted since 2004, or more accurately the huge imbalance has been made clear, where it wasn't in 2004.

The Goodwin judgment refers very specifically to 'post-operative transsexuals'. This is very different from 'anyone with a gender identity' (bold mine).

91 ... As Lord Justice Thorpe observed in the Bellinger case, any “spectral difficulties”, particularly in the field of family law, are both manageable and acceptable if confined to the case of fully achieved and post-operative transsexuals. ... No concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost.

120 ... It will be for the United Kingdom Government in due course to implement such measures as it considers appropriate to fulfil its obligations to secure the applicant's, and other transsexuals', right to respect for private life and right to marry in compliance with this judgment. While there is no doubt that the applicant has suffered distress and anxiety in the past, it is the lack of legal recognition of the gender re-assignment of post-operative transsexuals which lies at the heart of the complaints in this application, the latest in a succession of cases by other applicants raising the same issues.

The problem here is that the case was brought by a post-operative transsexual, and the requirements placed on the UK were for this person and others like them. Not for anyone with a gender identity. This should have gone back to the court because it was impossible to make a law which would only apply to post-op transsexuals without making surgery a requirement for applicants, which was seen as inappropriate.

Paragraph 91 shows the misogyny of the court. They declared that there would be "No concrete or substantial hardship or detriment to the public". There is no recognition there that allowing males to be legally recognised as women might cause problems for actual women and girls, even if those males have had their genitalia modified.

Yes, PFC encouraged the government to go beyond the law. Sound familiar?

This bit is interesting:

However, as is made clear by the report of the Interdepartmental Working Group, these problems are far from insuperable, to the extent that the Working Group felt able to propose as one of the options full legal recognition of the new gender, subject to certain criteria and procedures.

I seem to remember that PFC were also heavily involved in that working group. I'll see if I can find the report later.

For now I just note that if the GRA was one option then I was correct in thinking it was a solution to a breach of rights and not an intrinsic right in itself.

The ruling was that individuals have the autonomous right within their own personal sphere to define their own private information and have that information recognised and recorded accurately by the state under Article 8 of the Convention.

I mean, why not just give everyone a blank birth certificate and a crayon?

Is it just sex. I doubt a 56 year old man can write 9 year old girl