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.

Thanks for the correction.

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.

How is that not self-contradictory? Personal sphere and private information are surely independent of the state?

Why shouldn't he be able to though?

If 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, why should that only apply to sex?

Why can't we define our own date of birth, parents and place of birth as well?

Yes I can't quite work this out.

There is private information that is recorded by the state, e.g. medical records, but it's not the kind of thing you get to define for yourself in your own private sphere.

I can't think of any private information that you get to define for yourself that is any business of the government.

Leaving the ECHR would be an extremely immature solution to the problems that we have with the GRA and the EqA. However, I don't believe that leaving the ECHR would be in breach of the GFA or lead to breaches of it.

The only obligation that the GFA placed on the UK Government was to incorporate the provisions of the ECHR into NI law. This has been done. All the other ECHR obligations are placed on the Assembly with recourse to the courts if the Assembly passes legislation that is in contravention of the ECHR. These obligations would remain if the UK left the ECHR and the courts would strike down any contravening legislation.

Who is David Allen Green? What has he said about repeal of the GRA?

I've read those paragraphs again, and the ones mentioned within those paragraphs, and they don't say that gender identity must be recognised by the state.

Paragraphs 71-75 say that previous decisions made by the court stated that there was no requirement for a state to give legal recognition of a change of gender.

Paragraphs 76-79 are about the applicant, their surgery and the apparent contradiction that the NHS paid for the surgery but the state would not grant legal recognition following the surgery. (Note this hinges on the applicant being a post-op transsexual. This would not apply if they just had a gender identity.)

91-93 I covered before: Can be summed up as 'Women don't matter, give these men what they want.'

64-67 is the UK government position - they thought that transsexuals had what they needed - lists provisions already in place for privacy and their new 'gender' being recognised on reissued passports and driving licences.

But none of this states implicitly or explicitly that "gender identity must be recognised by the state."

Found the report:

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

Does anybody else feel like we've just spent the past decade slowly unpicking all the dreadful things PFC did quietly, during the 90's and 00's, behind closed doors?

When I say I want a full public inquiry into All Of It, this is how far I want to go back.

Do you have a solution in mind without exiting?

Just out of interest

The solution is obvious.

We use the ECHR, which is there to protect all of our rights. We bring women's, and perhaps children's and LGB human rights cases up through the courts until we reach the European Court of Human Rights.

We show that the article 8 balance made in Goodwin is badly wrong. We get Goodwin overturned. Yes there are other cases but if they all rely on Goodwin then they'll be left relying on fresh air.

Then we repeal the GRA.

I'd like to think that would work but I think the world has gone too far and we would just succeed in further damaging women

How would it further damage women? The worst that would happen is that a case failed and the law stayed as it is.

And that's likely to happen a few times before we are successful. I think it took about a decade of PFC pushing cases through before goodwin succeeded.

It might take us that long to overturn it but I suspect a bit less time because there are growing signs that most people are sick to the back teeth of this BS by now.

This is the normal way that rights are secured and I'm not ready to give up on it just yet. Exiting the ECHR would definitely further damage women, along with everyone else.

How do we bring about cases? I mean it takes the situation and the £££ funds

I get the idea I just can’t see how it snowballs

I mean none of use can do anything, or can you?

We've been crowdfunding cases and achieving considerable success for years now. It's definitely doable.

Not all cases involve the GRA but occasionally one does. We just need to keep pushing those ones as far as they can go.

Do they end up making case law with the ECHR?

Another element which is potentially a bit iffy is the swings in Europe to the right. The U.K. imo is protective of gay rights but women want to protect sex based rights.

We want to separate it out. But just hearing some news from Spain and upcoming election things could start to change there too

Not so far but there's no reason they couldn't, given the right cases.

The trickiest thing is that suitable cases are not likely to originate in employment tribunals (which are relatively easy and cheap), they're far more likely to come from things like prisons and same sex personal care, where GRCs make an obvious material difference. So a judicial review would be needed, which is more difficult but again, perfectly possible.

ECHR doesn't have anything to do with the political whims of European member states. OTOH the political climate in any particular country will affect what kind of cases people bring and how much support they get. We're not confined to cases that start in the UK. Cases from any country that is a signatory to the convention could be helpful if they show conflicting rights with legal gender recognition.

I do not think the jurisprudence of the ECHR to date has been friendly to recognition of the rights of women as a sex class.
democratic debate is where we win. It is not hard to convince sensible people - and most people are sensible - of how absurd genderism is.
I would like us to leave the ECHR. I recognise the difficulties. But a bunch of judges, at the end of the day, is pot luck. It’s a handful of people. Get electorates to vote and on the whole, it works out better, for us.

I should say, it works out better if genuinely free debate is permitted. There we win. If the other side manages to suppress the arguments there are problems.

Oh would that I had!

I strongly disagree. Human rights law is what protects us all as individuals from the worst our own government might do to us.

The universal declaration of human rights (made binding law by the european convention) was brought in after the second world war because it turned out it wasn't actually unlawful for the government of a country to gas millions of its own citizens. Hitler was voted in. It didn't work out better.

ECHR is not perfect and it's not upheld perfectly (some countries better than others) but without it we would all be much worse off. If we left, what recourse would any of us have if the government violated our rights? Who would hear our case?

IANAL and NRTFT but this whole idea seemed a bit unevidenced from what I read on the other thread. Other posters did not agree that leaving ECHR was a relevant prospect.

The other countries under ECHR don’t all have GRA equivalents. GRA was of its time and it’s now causing too many problems to be retained. The law is never intended to just stay the same eternally. Nobody is proposing leaving gender non conforming people without legal protections when they talk of repealing the GRA.

Leaving the ECHR would be a disastrous idea for everyone. I don’t see how it has anything to do with repealing GRA, then relying on a reformed Equality Act for human rights protections, though. There is no human right to legally change sex.

That I think is a misrepresentation of the more complex picture presented by nazi atrocities. The ECHR did not need to be in place for the Nuremberg trials to proceed and I assume you would not argue those are unlawful. Genocide and crimes against humanity are recognised as crimes in the international legal system independent of treaty obligations.
I think a government determined to disregard legal norms to that extent within its own borders is unlikely to be restrained by decisions of a supranational court which can easily be portrayed as devoid of democratic legitimacy. In any event we are not talking about that sort of situation. If The decisions of the Strasbourg court had stayed within such uncontroversial areas it would not be a problem but they have gone well beyond what would have been contemplated by those who framed the ECHR with nazi atrocities in mind, imposing norms in numerous areas with no opportunity for democratic debate. That is why it is resented and partly why it cannot be counted on to protect the separate legal existence of women as a sex class, in my view.

@OldCrone

Yes, it's an interesting subtlety that Goodwin was decided on the basis of the applicant being a post-op transsexual rather than transgender.

It seems odd that so much of the supposed lack of public interest was swept away based on this, but has since been extended to cover a much wider range of cases without that additional consideration being given.

I think this point is something that should be given more consideration. The judgment talks about 'great personal cost' in respect of transsexuals. There is no 'personal cost' to declaring a gender identity: this refers to surgical and other medical interventions. And also, as I mentioned earlier, the court mentioned the apparently contradictory situation in the state (the NHS) paying for these medical interventions to 'change gender', but not allowing them to change their legally recognised sex on their birth certificate (although it's not clear to me why a change of 'gender' on documents such as passports wasn't enough). There is no such contradiction if we are just talking about a 'gender identity'.

We had a ruling from the ECHR which was for post-op transsexuals, but we ended up with the GRA which applies equally to people with a 'gender identity' who make no changes to their bodies and have no intention of doing so.

This is a very good point from both pp

We have huge mission creep - given male privilege and that women should just stfu not surprising - the other thread stated we’d be against ECHR case law to repeal GRA

But we have massively extended on the scope. So we could scale back I assume and be within international law

Children would be out of scope too

IANAL and struggle to understand the subtleties here.

I don’t see why abolishing the GRA would go against Goodwin. But if it did, couldn’t the government repeal it and then argue that Goodwin failed to take into account the wider public interest, so should be overturned?
Why do women have to bring cases to challenge it?
Why can’t TRAs be forced to take cases to challenge the legality of the repeal of the GRA?

Why do women have to bring cases to challenge it?

IKR, given that we now know it undermines safeguarding and DBS checks, and its being used to claim lesbians no longer exist, I'm fucking baffled why we have to do anything.

Except - the ECHR itself is captured. And that's a second problem.