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.

The explosion in young women thinking they can change sex is a national (and international) disgrace. That girls (and boys) have been gaslit by adults with a vested interest into thinking that changing sex via drugs, surgery and future infertility is desirable, is unforgivable.
Whatever laws are changed / discarded, we must return to the societal norms of protecting children from adults seeking to exploit them.

I found that synopsis useful because it lists the relevant cases (no idea if it's a comprehensive list or if there are others they have chosen not to include), with a brief comment on the outcome so that the full judgment can be found if it seems to be worth reading.

I do think it is an absurd idea that a judgment has to be read in full with all the other cases mentioned therein also read in full (and presumably all the other cases they mention as well and so on...) before one can have an idea of what the decision was.

I'm pretty sure some legal professionals are able to summarise a case for those who don't have the time and/or the legal expertise to read and/or understand the full judgment. Legal Feminist seem to do something like this.
https://www.legalfeminist.org.uk/

Or infantilising trans men whilst demonising trans women is misogyny. It all depends on your POV. Terrorist. Freedom Fighter. An analogy to keep things within the spirit of this thread

No, I've based my observation on what they have said themselves. Obviously there is some variation, but there are definite tendencies and themes.

Correction: Before one can have a fully informed opinion as to why the GRA is an Article 8 matter under the Convention, how the ECHR arrived at that decision, what specific rights are involved, what that means, and how that has changed since then with subsequent rulings, and why the ruling that you're looking at was built on previous rulings. For instance on that last, the list you link to fails to have R. v. Matthews on it, despite R. v. Matthews being of relevance to the Goodwin ruling, or P. v. S. and Cornwall County Council which was of even more importance

This is a discussion on the details of the ECHR and the GRA and the interaction of the two. That by necessity requires an understanding of a level of detail beyond that of a mere 210 words in one paragraph when the ruling is 15,791 words contained within approx. 140 paragraphs. That's somewhat akin to claiming to understand the Highway Code by choosing only to read the table of contents

As I said. Terrorist. Freedom Fighter

For someone who goes on so much about careful reading and understanding of documents, you are extraordinarily prone to misreading or misunderstanding my posts.

I did say (in brackets in my first paragraph) that I had no idea if it's a comprehensive list or if there are others they have chosen not to include. So it's hardly a 'correction' to point out that some were, in fact missed.

And I never suggested that simply reading the brief summary in that document was all that might be required (read the first paragraph of my previous post again).

TBH there's not much more to it than that some men want to be women because they have special lady feelings and think they have lady brains. The rest of us are supposed to just accept this no matter what problems this might cause, particularly for women and children.

The whole legal argument about what men have to do to be legally recognised as women is absurd and it would be laughable if the consequences for women and children weren't so serious.

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Oh I really don't think even you think you've won the argument that repealing the GRA would be worth scrapping the Good Friday Agreement and returning to the Troubles.

PlanetJanet I really don’t think even you think that can be true. They made the exact same arguments against extending the 1967 Abortion Act to Northern Ireland, twenty years ago. People said it couldn’t possibly be done because it would trash the peace process.

Fast forward to now, Northern Ireland has a Westminster-imposed abortion law of its own which is more liberal than in the rest of Great Britain. And the Troubles have not returned.

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

@PlanetJanette: knock yourself out.

@LowKeyLockee: Then have at it.

Fantastic, I think we're done here 😃

OP is right, this has been useful, even if infuriating. The attempts at emotional blackmail have been disgraceful but so outlandish and transparent that they are also useful.

I said to one of them (sorry, can't remember which) on the previous thread that they underestimated the persistence of women but I'm not sure now. I suspect many of the TRA are shit scared of the persistence of women by now because they have seen what we have achieved over the past five years.

They must be alarmed at the shifting overton window on #RepealTheGRA. They must be aware that every time there are calls to 'simplify' the GRA, a load more people read up on it and say, 'hang on, why are we allowing this in the first place?' They must be alarmed that resistance is not confined to 'terf island' but is gathering pace across the world.

Out of all the other places where people are 'wrong on the internet' there is a reason efforts are concentrated here.

And your last paragraph is exactly why the detail of the ruling was broken down and explained fully. Your claims are . . . well, as expected from somebody who has already stated they have no legal expertise or experience

Your claim of "here's not much more to it than that some men want to be women because they have special lady feelings and think they have lady brains" is derived from not understanding human rights law under the Convention, or the preceding law. Do you know why Goodwin was decided as a matter of sex? I do. If you'd read the explainer I did for you, you'd have the tools to be able to look at Goodwin in detail and see it. But you didn't. And as a result there's a bit you're not grasping because you don't like having to take into account the whole ruling and having to take into account the cases cited in it. Can you guess what that bit is?

It's one of the cases cited. The ruling you claimed it was preposterous to expect people to read to understand what and why the ruling was what it was. The bit you consider preposterous? It's this:

It was that Goodwin was partially decided on a previous case from the decade before that was applicable to all UK legal jurisdictions that determined that discriminating against somebody because they were trans — because they had, or were undergoing a process of gender reassignment — was a matter of sex discrimination

I'd imagine that wording may sound familiar to you. Or perhaps not. In either case it's entirely immaterial. That decision was one of the cases not on the list. And yet it's important because it's one of the major planks that Goodwin was built on and the Court decided on. And in turn cases after that point built on Goodwin, and then cases built on those cases

Do you see how relying on precis impacts the ability to understand why something in law is the way that it is? Or even understand what law is relevant? You keep mentioning Goodwin as if that's the stumbling block to you and other GCs getting what you want, and yet Goodwin is an old case long since built on and then superceded by others. Without knowing what those others are, especially in detail, how do you propose even beginning to campaign against them, let alone fight them? And even when you do find out what those cases are, you can't understand them without understanding the details of the planks they were built on. Which includes Goodwin. So yes. If you want to fight the law you need to know what the law is and even more importantly all the relevant pieces of legislation, precedent, and case law that went into creating it

There's no shortcuts. Just boring, bland, lateral reading of the ruling, both internally, and across other relevant cases as cited. Thankfully rulings tend to make that last bit a little easier as they do tend to highlight the relevant sections

The Abortion Act 1967 didn't have membership of the ECHR written into it as a baseline requirement for the UK not to breach it. Nor is it an international peace treaty whose underpinning rests on both governments maintaining access to the ECHR for the citizens of the island of Northern Island

The Abortion Act 1967 and the Good Friday Agreement. One of those things is very much not like the other

If you want to fight the law you need to know what the law is and even more importantly all the relevant pieces of legislation, precedent, and case law that went into creating it

I'll leave that to the lawyers.

All I need to know is that the GRA was a misogynistic and homophobic piece of legislation which was put in place by a misogynistic and homophobic government as the result of a misogynistic and homophobic ruling by the ECHR.

And really, discussing at what point a man can be a woman - anything from self-ID, through genuine lady feels to full genital reconfiguration - is like discussing how many angels can dance on the head of a pin. It's batshit.

I don't know whether it would be lawful or not for the government to just repeal the GRA. I think we should all watch what happens with the illegal migration act and find out.

The process seems to be that the government makes a declaration that they are unable to make a statement of compatibility but here is why they nevertheless believe they are fulfilling their ECHR obligations.

https://publications.parliament.uk/pa/bills/cbill/58-03/0262/ECHR%20memo%20Illegal%20Migration%20Bill%20FINAL.pdf

So we can wait and see what happens next with legal challenges or direct action by ECHR in response to this and this will inform us of the best way forward to secure our rights.

Meanwhile, whether we take our own cases to the ECHR or ask the government to repeal the GRA the groundwork is the same - collating evidence on the ways in which the GRA breaches the rights of women, children and LGB. Either we need to make our own case or we need to help the government make our case for us. There's no reason why we can't pursue both options for now.

"All I need to know is that the GRA was a misogynistic and homophobic piece of legislation which was put in place by a misogynistic and homophobic government as the result of a misogynistic and homophobic ruling by the ECHR"

Which is a bit of a problem for you as what you know is incorrect. The ECHR decision was (at the time) the end point of a serious of legal cases, precedent, and required statutory law, spanning across multiple jurisdictions that also include those external to the ECHR, and different UK governments from different parties, as well as a little something that's being going on called the NHS. You may have heard of that last one. Hopefully you have, at least

Which is a bit of a problem for you as what you know is incorrect.

Which bit is incorrect? Read the Hansard transcripts for the GRA debates. The misogyny and homophobia is blatant.

I've already told you which part is incorrect. All of it. Perhaps you'd care to go back to my reply and this time read it? If you're having trouble understanding how specific parts of it are applicable I'll see if I'll be willing to explain it to you. That would, of course, be in detail to ensure that you have as full a picture as possible in a language that somebody with no legal expertise or training can understand 🙂

Meanwhile, whether we take our own cases to the ECHR or ask the government to repeal the GRA the groundwork is the same - collating evidence on the ways in which the GRA breaches the rights of women, children and LGB. Either we need to make our own case or we need to help the government make our case for us. There's no reason why we can't pursue both options for now.

Do we need a new thread to collate evidence?

That’s right. It’s perfectly reasonable to expect an experienced, competent lawyer to summarise the effect of a decision in jargon free language and in a way which moves the discussion forward. This is the essence of what legal professionals are there to do and It would be pretty difficult for them to make a living if they couldn’t. I wouldn’t recommend bothering with someone who purports to have expertise but who can’t do this. If they don’t succeed in wasting your money they’ll definitely waste your time!

I for one would be fascinated to see such a thread as in the end it comes down to the same argument; attempting to get a new ruling from the ECHR that then overrides all previous rulings on this since Goodwin

Anything else just results in compensation payments being awarded by UK courts to trans people denied their rights as determined by the ECHR, and as the last order for compensation on this matter before the ECHR came out to over 60% of the average annual wage of the member state involved, that's not going to be a small amount. That was on a relatively minor matter; the member state not having in place quick, transparent and accessible procedures for legal gender recognition. Not even on the matter of the member state having no process in place, which is a considerably more serious matter

And of course UK courts aren't sovereign, are bound by ECHR precedent, and do have the power to issue court orders to have information on a birth certificate changed which is another avenue of relief that could be sort by a claimant

So it will be very interesting to see what arguments you can come up with that can show that your Article 8 right to autonomous determination of your information as a private individual has been breached. And it would have to be the right to self-determination of information by the individual bringing the case, of course. Bit of a tricky argument really as you'd need to argue that not recognising somebody else's autonomous determination of their information in regards to sex now falls back within the margin of appreciation of the member state and that's an argument that would fail, partly because Article 8 is founded on the principle of self autonomy, not autonomy over another, also because you're not actually arguing that your rights in this specific area have been breached

As to why that specific area? It's because that's the area of law that Goodwin was decided on, as was all subsequent ECHR cases on the matter of changing sex, and the court can only override previous rulings on a specific area of human rights by issuing a new ruling on the same specific area. Which if you've been keeping up, you'll know that's how Goodwin was passed. By superseding previous cases that had previously determined the matter of autonomous determination of sex as a matter of information by the private individual bringing the case. And of course the slightly tricky matter that the ECHR is enjoined by the treaty from removing rights determined by the treaty to exist

I'm not exaggerating at all when I say I would be entirely fascinated to see that thread

If they don’t succeed in wasting your money they’ll definitely waste your time!

Very true.

I think the critical issue about getting the GRA repealed is not to do with the reasons why it was passed, but the fact that the effects on other people, particularly women and children, weren't considered.

All this fussing about the detail of the ECHR judgment is irrelevant. If we can show that the GRA has the effect of infringing the human rights of women, we can work on getting it repealed.

A great deal of detail has been provided to no actual purpose.

As this is a discussion board, happy to share my readings this evening, although I am not a legal scholar.

Will send my bank details for my consultation fee in the next post ;)

I've been reading R.K. v Hungary, the Jun 2023 judgment referred to by PP as the most recent relevant ECtHR decision.

Summary: Before 2020, Hungary had a process for changing sex on birth records, but it was confusing, inconsistent and unofficial (heavily dependent on whichever official you happened to deal with). In 2018, a trans man (I assume quite young as the case refers to distress at school) applied to change her name and sex marker from F to M.

In May 2020, the Hungarian government brought in new legislation specifying that (a) sex at birth could not be changed, and (b) this new rule was retroactive and applied to any current/pending applications. The applicant's case was still pending at the time.

Earlier domestic courts as well as the ECtHR agreed that (b) was invalid and therefore the applicant was bound by the old system, and the case would judge Hungary's gender recognition system "in force at the material time" i.e. 2018-2020.

Result: The meat of the case, and the reason an Article 8 violation was found, seems to be the inconsistency/uncertainty of the pre-2020 process. The court concluded

(para 76) ...the legal framework in force at the material time... did not provide "quick, transparent and accessible procedures" for the examination of a request to change the registered sex of transgender people on birth certificates.

This seems to be much more about having fast decisions, and avoiding protracted and painful sterilisation/medical requirements etc. There's nothing faster than simply telling everyone "no"!

Concurring and dissenting judgements: Scroll down to the bottom of the link to read them, I really advise it for getting ideas on how people are thinking this could be attacked.

Judge Hüseynov notes the wording of "for the EXAMINATION OF A REQUEST TO CHANGE" rather than "for CHANGING" in para 76 and is annoyed at it for leaving the door open.

Judge Wojtyczek says that "in my view, the Convention does not guarantee the right to obtain a change of the registered sex on birth certificates and the parties can choose how to regulate this domain", and links to the much longer dissents in A.P., Garçon and Nicot v France and X v FYROM, which I will have a look at next :) Skimming through them, I see some familiar GC arguments and they seem to boil down to, this is controversial and there should be a wide scope for states to make their own calls.

tl;Dr on the above - RK v Hungary doesn't seem to say anything at all about the legality or otherwise of Hungary's equivalent of repealing the GRA, which they did in May 2020. It pre-dates their new legislation forcing birth sex to remain unaltered and therefore isn't relevant IMO.