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.

We need to not only look at the decisions courts have made but also what evidence they were presented with and what was missing from the evidence.

I haven't had time to look at this in depth but on skimming the report of the Interdepartmental Working Group on Transsexual People 2000, which is referred to several times in Goodwin, it is clear that they listened to self-proclaimed cross-dressing heterosexual men (the Beaumont Society) but did not bother consulting women.

http://docs.scie-socialcareonline.org.uk/fulltext/wgtrans.pdf

What is also striking at first glance is the inclusion of an appendix in which Zoe Playdon asserts that transsexuals should be treated as a kind of intersex.

Playdon is the one who wrote that book about Ewan Forbes, thus revealing how the TRA had been fraudulently misusing provisions made for people with DSD 'at least since the early 40's'. They would have got away with it longer if it had not been for that pesky Corbett v Corbett.

PP is right, the TRA must always cloak themselves in other people's baggage because their own case is so weak.

Have there been any 'gender recognition' cases that have made it to ECHR that have actually heard and responded to the evidence from women on the effects of these laws on our own human rights?

It would be useful but it would probably get spammed.

Nobody should ever be intimidated out of standing up for their own human rights. It's nowhere near as arcane or abstruse as some posters here would have you believe. It doesn't matter if you have 'no legal expertise or training'.

You are allowed to describe what has happened to you in your own words and how this has violated your dignity or created a hostile environment for you. You are not required to take on responsibility for the good friday agreement and lasting peace in northern ireland before you are allowed to speak up for your own human rights.

I agree, this is the critical issue.

That was because the ruling noted that the striking down of the law in 2020 was ruled unconstitutional the Constitutional Court and overturned in the area of attempting to retroactively apply the law which is the matter dealt with in this specific case. There are a further number of cases now lodged with the ECHR further challenging the current situation in Hungary. This case was cited because it notes that member states are required to have in place a process for change of sex that is quick and transparent and that was not the case for the applicant

It will be interesting to see the results of those cases coming through, then.

To clarify completely what this poster is saying and reiterate my previous post - neither this judgment nor the Hungarian Constitutional Court overturned Hungary's new law saying birth sex cannot be changed. As far as I can tell, that is still in place.

They only overturned one specific part of it which tried to apply it retroactively to pending/in-progress cases.

This case was cited because it notes that member states are required to have in place a process for change of sex that is quick and transparent

(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.

That's different from saying a procedure to change legal sex.

As far as I can tell, a well-documented and accessible government web page which simply showed the message "Birth records and registered sex cannot be altered in the UK, have a nice day" in response to every request would meet this requirement, no?

Yes, I think the important thing to question is whether people should have the right to falsify their birth details on their birth certificates (in the UK, it's my understanding that the birth record remains unchanged, but a note is made on it and birth certificates issued following the acquisition of a GRC will be issued in their new, falsified form).

Discussing the point at which a man should be allowed to be documented as a woman (or vice versa) is the wrong question. Discussing whether everyone should have the right to choose their legally recognised sex is the wrong question. The ECHR is about human rights. It's not a human right to be able to falsify official records.

I think it's worth thinking about how we got here, by examining the issues of breaches of human rights and their remedy (for the UK) in terms of the Goodwin ruling and the GRA. If there is a breach of human rights there will usually be a range of options to remedy this. Assuming that the only way to remedy the breaches of human rights in Goodwin was to pretend that a person had changed sex was a poor assumption.

I was just looking in Hansard as I remembered reading that someone (I thought it was Lord Tebbit, which turned out to be correct) had mentioned the government participating in fraudulent behaviour through the falsification of birth certificates under the GRA. His contributions are interesting as someone who foresaw a lot of the problems with the GRA. But while looking for that I also came across the contributions of Lord Chan and Baroness O'Cathain here:
https://publications.parliament.uk/pa/ld200304/ldhansrd/vo031218/text/31218-05.htm

They both talk about the effects on wider society of legal recognition of people as the opposite sex. From Lord Chan's speech:

It is therefore likely that individuals applying for gender recognition certificates will continue to be men with male sexual organs. About half of male transsexuals have not undergone surgery. If they are then given gender recognition certificates classifying them as females, serious consequences would affect their partners, children and other people, including women who use public toilets.
...
More medical research is needed into transsexual people in order to provide them with appropriate support. The Gender Recognition Bill assumes that the condition is already a discrete and clearly agreed medical condition, which is not the case. Therefore, I fear that the Bill would infringe the rights of third parties.

Baroness O'Cathain's speech includes these quotes from medical professionals at the Portman Clinic:

"The experience of many psychiatrists, psychoanalysts and psychotherapists working with transsexual patients is that they are individuals who, for complex reasons, need to escape from an intolerable psychological reality into a more comfortable fantasy. By attempting to live as a member of the opposite sex, they try to avoid internal conflict, which may otherwise prove to be too distressing".
...
"It is a measure of the urgency and desperation of their situation that they frequently seek surgery to make their fantasy real. By carrying out a 'sex change' operation on their bodies, they hope to eliminate the conflict in their minds".
...
"Unfortunately, what many patients find is that they are left with a mutilated body, but the internal conflicts remain".

This shows the danger of the rest of society going along with this fantasy and the detrimental effect on these individuals in doing so.

I've picked out below some excerpts from her speech where she mentions the rights of others. This is something that neither the ECHR nor the GRA acknowledge, that allowing fantasy to invade reality affects the human rights of the rest of society.

Some people shrug their shoulders and turn away from the problem. The implications of the Bill are too serious to permit such inaction, as the delusions or fantasies of a few individuals will be imposed on many. Surely, it is better to help them gently to come to terms with reality, rather than trying to change reality to fit their delusion.

Transsexuality is seen as a privacy issue, until it comes to demanding benefits and coerced responses from the public. The important question that no one seems to care about is the rights of third parties, something that the noble Lord, Lord Chan, drew to our attention. It seems to have been completely ignored by the Joint Committee on Human Rights.

A man who has lived as a man for 40 years or so, has married and has fathered children can be deemed to be a woman, for legal purposes, by the committee. Surely, that is wrong. We should think about the effect on the children, the extended family of nieces, nephews or even his grandchildren.

Society can be rocked by this, even though, I am told, there are only about 5,000 transsexual people in our population of 60 million. Let us not ignore the effect on the many hundreds or even thousands of people acting in an official capacity who will have to go along with the pretence. Many of them will feel that their conscience is being profoundly compromised.

We should be looking for a way for everyone's human rights to remain intact. Not just those who want to 'change sex', but those who are expected to go along with the pretence. The GRA, embedding into law that people can 'change sex' was not the only possible solution, and I think it was the wrong one.

@OldCrone I think it's worth thinking about how we got here, by examining the issues of breaches of human rights and their remedy (for the UK) in terms of the Goodwin ruling and the GRA. If there is a breach of human rights there will usually be a range of options to remedy this.

@PencilsInSpace We need to not only look at the decisions courts have made but also what evidence they were presented with and what was missing from the evidence.

Really interesting posts thanks both, lots to read today. I agree with both.

I'm going to have a more careful read through the dissents in some of the previous judgments as well today. To get ideas on where the arguments are flimsy.

I find it interesting to compare this to the US Supreme Court in a couple of ways.

One is that Americans don't have the option of withdrawing from the Supreme Court, so they learn how to play the game with stacking judges and sponsoring highly-tailored cases to go through. Interesting to observe their strategy.

Second is specifically about the parallels with Roe v Wade and the right to privacy/private life, interpreted very broadly to resolve socially-contentious issues in court, where there are competing interests involved (abortion, gay marriage, gender identity...). I found Alito's writing in Dodds to be quite interesting, despite being broadly pro-choice personally. I wonder to what extent there will be a movement/international trend against overbroad interpretations of "private life" - I'm just idly musing, but I assume judges talk to each other, get ideas from other court decisions...

No, it wouldn't. If you more closely read the dissenting opinion in R.K. v Hungary (and follow through to the two other cases) you'll note that the dissenting opinion is that the Article 8 right to self-determination of private information is not a guaranteed right (ie to be granted under all circumstances), but rather it lies within the margin of appreciation to set into place criteria to be met (that should be a concept familiar to many people on this board as it's been mentioned enough times). This was on a case to do with that process being quick and transparent and the dissenting opinion in particular is that the process doesn't have to be quick or transparent. What it doesn't say is that there is no right at all to that process, and that's borne out when you see the dissenting opinions in the other two cases noted by the dissenting judge which again differentiate between the right to have a change of sex recognised, which lies outside the margin of appreciation for all states, and the criteria for that to occur where the dissenting opinions (to describe simply) argue that some of the criteria that has been found to lie outside the margin of appreciation for the country should lie within it

It should also be noted paragraph 75 of the ruling. One of the planks Goodwin was built on was that the ECHR had already signalled to the UK that it was expecting it to have put into place a process for recognition of change of sex, but it had refused to do so. Para 75 of the R.K ruling is of the same nature as the previous pre-Goodwin rulings that the Court had made in regards to the UK. It's essentially a warning shot to Hungary; change the law or be prepared to have to pay out compensation that's going to be considerably higher than 60%+ of the average annual wage and will have interest accruing on it if not paid in time. Which is why the forthcoming cases coming through the system will be interesting to see. Hungary will again attempt the same argument (domestic remedies were not exhausted) which was knocked back by the ECHR, and either directly or by proxy use the arguments of Ordo Iuris within R.K that weren't just knocked back by the Court, it was entirely ignored as it was deemed to have no merit

Just as an additional note, the reason I picked out this ruling is because of paragraphs 57-77. The Court is at pains to note within that section that Hungary's claims that the applicant should have sought remedy through domestic remedy did not stand up to scrutiny because of the legislation enacted that had deliberately sought to stop that. The Court gives that argument very short shrift. The Court makes it clear that balking domestic remedy and then attempting to argue that domestic remedy should be used isn't going to fly with the court, and that's likely one of the reasons why the compensation award is so high

This is of particular merit to the oft repeated claim of "Just repeal the GRA and let trans people pay to take cases to court". The R.K ruling has precedent that UK courts are now required to follow; that if a member state removes a process to the recognition of a change of sex it cannot then argue that domestic remedy must first be exhausted unless it concedes the position that the domestic remedy allows for a process of recognition of a change of sex. And that's something that those seeking GRA repeal should be wary of. Partly because of one aspect of domestic law that certain posters keep forgetting about (even if they were aware of it), but also because the powers of the courts to issue court orders can't be underestimated. Relevant UK courts have very literal power over life and death and enforce that through court orders (the order to end medical treatment for somebody who would die as a result of that action, as an example), and have issued court orders for a whole range of other reasons

Correction Note: Birth certificates in the UK aren't 'falsified'. That claim is not only erroneous, it also ignores all the other changes of information on a birth certificate or the book of registrations when it's determined that such a change is necessary (such as a discrepancy held on an issued birth certificate and that held in the book of registrations which is a thing that does happen so a change is required, or that the information was wrongly recorded at the initial registration, or that the information was simply wrong when the birth was registered and needs to be corrected)

And as the rest of your argument either rests on a claim made by you that is incorrect, or otherwise flows from it I fear it is my sad duty that it doesn't stand up. Likewise drawing from Hansard is pointless when one only quotes from those the very small minority that didn't support the Bill as it doesn't cover where those arguments were challenged and defeated (which they obviously were as the Bill was passed) and therefore there is no available context in which the comments can be read correctly

The GRA has to be rendered useless other than on your death certificate anyway, irrespective of any repeal. This is happening already with the clarification of biological sex in the Equality Act.

As it's just "admin" we can treat it as that.

The more we see the "privacy" behaviour of men who want private certificates the better.

Their own activities are destroying their case.

Birth certificates in the UK aren't 'falsified'.

That was the word used by Lord Tebbit. And what word would you use to describe lying on a birth certificate that someone was born female when they were actually born male? This is not a 'correction' for an error.

therefore there is no available context in which the comments can be read correctly

Of course there is. Hansard in its entirety is available on the web. Why don't you go and read all the debates to get a better idea of what was said at the time? That should keep you busy for a few hours (or days).

And when you find the part where those arguments were challenged and defeated you can post the link on here. I'm not sure what you mean by this in the context of a parliamentary debate though. I doubt that those who had concerns were all completely convinced by the arguments of the other side, just that they were outnumbered at the time of the vote.

But I think one of the most important points was in Baroness O'Cathain's speech when she quoted the testimony of some of the psychiatrists, psychoanalysts and psychotherapists working with transsexual patients at the Portman clinic (which I think is now the Tavistock and Portman). They were of the opinion that the GRA would not be beneficial for their patients. So not only is the GRA harmful for the rest of society, it's also harmful for those it was designed to help. This is an important point which should be discussed more.

Tebbit used many words. Most of them were, frankly, steaming garbage

For instance, when talking about the murder of Jo Cox he decided to say that the murderer was actually not a “far-right terrorist” but a left-winger , using the well-known conspiracy theorist claim that Nazis were actually left-wing. A deliberate act of politicising a woman's death to (again) attempt to rewrite one of the worst periods of the 20th century

Or how about when he declared that gay people are sinful. That if gay people were allowed to be married he should be allowed to marry his brother or don. A well known homophobic talking point, attempting to equate being gay with incestuous and paedophilic relationships, itself arising from the fundamentalist Christo-nationalist homophobic talking points that gay people 'groom' children

How about when he declared that the 2000s Labour government had made both obesity and Aids in this country much worse by doing "everything it can to promote buggery". Charming fellow — he is not

Or when he campaigned (successfully) to not allow any discussion of gay or lesbian issues in schools and to block teachers supporting children who were gay, all under the flag of that any pupil of any age taught that gay people existed or that any pupil of any age be supported in their own sexuality was 'being cheated of a sound start in life'

It's fascinating that you keep bringing him up. It does at least give me a chance to show what kind of man you're so keen in championing as such a staunch defender of gay rights when he's anything but. Sunlight being the best disinfectant and all

"Of course there is. Hansard in its entirety is available on the web. Why don't you go and read all the debates to get a better idea of what was said at the time?"

Because I watched the debates as they happened. All of them. Including the final passage of the Bill and it being moved on to Royal Assent. Which is why I know that your habit if cherry-picking of quotes out of context from the debate that was being had – quotes from politicians that lost the debate – is not only self-defeating but also, frankly, have a tinge of desperation to it

She only quoted the source of one word!

I'm getting quite a few "tinges" off your posts.

@Hepwo The GRA has to be rendered useless other than on your death certificate anyway, irrespective of any repeal. This is happening already with the clarification of biological sex in the Equality Act.

Yes, I agree with the "rendered useless". I want the GRA repealed on principle, but there are lots of cases where GRCs aren't even required for men to gain access to women's spaces.

I honestly don't mind the option of a vanity GRC, I just don't want it to allow you to get a new birth certificate or change any other sex records.

According to that poster, one mention of one word that someone used means that I am 'championing' that person. And mentioning him once means I 'keep bringing him up'. Bizarre.

And he was only mentioned as an aside in my post. Our resident bot presumably couldn't find enough smears to throw at Lord Chan and Baroness O'Cathain.

Because I watched the debates as they happened. All of them. Including the final passage of the Bill and it being moved on to Royal Assent.

Why?

It does seem a bit obsessive, doesn't it @NecessaryScene?

I posted a link to the debate where everyone could read the quoted parts in context. I posted a few of the most relevant parts for those who didn't want to read the whole thing. I don't think you understand what cherry-picking means. And doing something once isn't normally referred to as a 'habit'.

The point of those particular quotes was to illustrate that the human rights of others were considered at the debate stage, but sadly not in the final Act. The impression I had had previously was that they weren't considered at all. I'm not sure if it makes it better or worse that the rights of others were considered but then thought to be disposable.

I have watched Tebbit get quoted on this board with admiration in regards to the Gender Recognition Act many, many, many times. A quick Google search returns 116 hits from this board, with similar results not shown. Nor do I need to address the rest of the spurious drivel that gets quoted, given that it's entirely out of context and where the poster deliberately doesn't show the responses during the debates themselves with the full realisation that if they did they'd undermine their own argument

I find it amusing to watch you follow the same old, worn out and long-since discredited tactic of attempting to claim that a handful of extremist voices in a debate they decisively lost somehow confers authority to your argument

It—what's the phrase again?—carries a distinctive tinge

Why not? Is it so curious that those with an interest in politics and a few years under their belt in law would follow the passage of landmark Bills? I also followed both attempts to repeal section 28 of the Local Government Act 1988. And most of the legislation being passed on Brexit during 2018 and 2019. I also followed the passage of the 3 devolution acts, something that happened last millennium. My personal favourite was following the passage of the Bill that led to the decriminalisation of abortion in Northern Ireland

"The point of those particular quotes was to illustrate that the human rights of others were considered at the debate stage, but sadly not in the final Act"

sigh Once again I must point out that's not how it works. Debates are part of a Bill when it passes through Parliament, gains Royal Assent, and becomes an Act. When the intent of Parliament in passing an Act is required to interpret that Act by the courts (as it often is) an examination of what Parliament intended happens. Because those debates are part of the Act. Those who claimed (falsely as was shown by the overwhelming vote against them in both Houses of Parliament, given that the Sovereign-in-Parliament is, well, sovereign) there would be breaches of other peoples human rights if somebody else finally got access to human rights were part of that recorded debate and therefore part of the Act. We know that because you're very keen on pointing out that you've linked to the text of the debates

"Our resident bot"

It is fascinating to watch people on this board return and return and return again to the same tactic of attempting to insult somebody because they dared argue against the GC 'position' and choose not to back down, instead continuing to engage with the discussion

Quick question? Does that tactic actually work? Because I'm still here and as I've mentioned elsewhere on this thread, unlike some people, I left the schoolyard a long time ago

I suggest you go and discuss your superior wisdom with others who you deem more worthy and leave us silly mummies to flounder in our ignorance. It must be so tiring for you to have to keep putting us right, especially when we don't cooperate and show you the reverence you surely deserve.

(But in the interests of accuracy and honesty, I'm not anyone's mum.)