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.

Yours is a statement that reveals that you can't read judgements in a necessary lateral manner, (reading and understanding a judgement given in whole, in part, and in relationship to each other, as noted in the para referenced to you) that allows you to understand it. From that it flows that your claims about what the judgement doesn't say and doesn't do are baseless; they are made when the foundation they are built on says the opposite to that to which you attempt to argue

As an example. Para 71-75 do not say what you think they do. They talk of a state's positive right to ensure the rights of people within that state, and then further narrow down which rights are under discussion in this particular matter. It then talks of previous judgements that had determined that Article 8 rights had not previously been seen to extend that far. After that the Court is at pains to point out that whilst it will seek to maintain consistency in rulings it is not bound by previous judgements, may rule otherwise, and will base its rulings on changes within both the member state and outside it. Of specific note is this from within para 74 where it is stated that;

"A failure by the Court to maintain a dynamic and evolutive approach would indeed risk rendering it a bar to reform or improvement (see the above-cited Stafford v. the United Kingdom judgment, § 68).

and then goes on to further say;

"In the present context the Court has, on several occasions since 1986, signalled its consciousness of the serious problems facing transsexuals and stressed the
importance of keeping the need for appropriate legal measures in this area under review (see the Rees judgment, § 47; the Cossey judgment, § 42; the Sheffield and Horsham judgment, § 60)."

76- 79, far from merely about "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." 76 provides contextual background, where 77 then builds on this noting that;

"It must also be recognised that serious interference with private life can arise where the state of domestic law conflicts with an important aspect of personal identity (see, mutatis mutandis, Dudgeon v. the United Kingdom judgment of 22 October 1981, Series A no. 45, § 41)."

Note the cited case (as , indeed, the ones above). This is where lateral reading extends itself from the internal reading of the document to then also understanding each of the points of law in each cited case and its relevance to the judgement. Without that then it is not possible to understand the judgement

77 then goes on to state;

"The stress and alienation arising from a discordance between the position in society assumed by a post-operative transsexual and the status imposed
by law which refuses to recognise the change of gender cannot, in the Court's view, be regarded as a minor inconvenience arising from a formality."

As you are no doubt beginning to be aware, lateral reading is once more required in addition to what is a very obvious statement ([...]the status imposed
by law which refuses to recognise the change of gender cannot, in the Court's view, be regarded as a minor inconvenience arising from a formality). In this case the skill and requirements of being able to laterally read a judgement is one of understanding the nature of mutatis mutandis. There is a reason other cases were also cited. They deal specifically with an issue you claimed mattered, that of this being a matter that extends only to "post-operative transsexuals" when in fact, it does not, nor has it done so since 1954 arising from the judgement of from A.P., Garçon And Nicot v. France, [2017] because of the nature of how community jurisprudence is applied. I have highlighted that last part because of the importance and necessity in understanding how community jurisprudence works in these matters. A case that makes a determination on human rights by the ECHR produces binding precedent on all member states from the date they ratified or otherwise joined the Convention on Human Rights

Your attempt to gloss over significant and weighty matters in 91-93, paragraphs that lay out the reasoning for a change from previous rulings. They note that allowing for a change of sex, despite deeply flawed claims by entrenched individuals trying to say otherwise, extends beyond marriage, taxes, and pensions, noting that it's also a matter inter alia access across the board to social security, to access to records, family law, affiliation (see ASLEF v UK as an example of one form of affiliation), inheritance, criminal justice, employment, and insurance. Para 91 notes that the work of the UK IWP setup by Parliament notes that the relevant and necessary changes to recognise the change of sex, for instance from woman to man, are far from insuperable. This is further supported at the end of 91;

"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."

Please note the specific care the Court made in the last piece of their judgement in that paragraph. That flows from pervious Article 8 rulings in other matters of determining the right to define private information, and is consistent with the Court laying out in para 71-74 that while it is not bound by previous decisions of the ECHR, it will still seek to maintain consistency in rulings. In Goodwin it achieves this by maintaining consistency with other rulings in regards to other matters of significant weight in the determination of the autonomous right of an individual to determine within their own personal sphere their own private information (see para 90 as to the importance of that. Yes, another example of the importance of lateral reading)

Note how I leave the UK argument to last. This was specifically to aid you in the nature of lateral reading. The arguments by all sides feed into the judgement. The judgement does not exist in isolation to those arguments. In this case the arguments put forward by the UK were that;

• The right to not recognise a change of sex fell within a state's margin of appreciation (this was determined to no longer be correct by the Court when making its judgement)

• It concedes that the refusal to grant legal recognition of a "transsexual's new sexual identity" may amount to a breach of Article 8 rights, in particular to where "the transsexual as a result suffered practical and actual detriment and humiliation on a daily basis" (B. v. France, [1992]). Again, the importance of lateral reading and taking into account the cited case cannot be understated

• Again from the above bullet point, the UK argument uses the term "sexual identity". That comes from the cited case (B. v. France, [1992]). This is the importance of lateral reading. In understanding this it's now possible to read B. v. France and from there follow cases that move the language from "sexual identity" to "gender identity" because of the confusion arising from the similarity of the terms "sexual identity" and "sexual orientation identity", especially given that the two formally recognised languages for ECHR judgements are English and French and that judgements are required to be accessible in both languages and must be accepted by the Court regardless of which of those two languages they are in. Judgements can also be translated into other languages (and often are for ease of understanding by the applicant) which in turn further cemented the necessity of providing clear delineation between the two concepts (e.g. σεξουαλική ταυτότητα and ταυτότητα σεξουαλικού προσανατολισμού, or from a more recent member state, სექსუალური ორიენტაციის იდენტობა and
სექსუალური იდენტობა. Whilst primary users of that language would be less likely to confuse the two, those who do not know the relevant languages particularly well can easily confuse the two, an issue during research when looking to present an argument which relies on a previous case whose judgement can only be found in one language that isn't the two formally recognised languages of the court. That was a common matter in the 90s as the internet didn't exist in the wide form it does today, and the web certainly didn't exist)

• In para 66 the UK in its argument uses the simpler term 'sex'. This is important and is again important in the matter of reading an argument both in part and in whole. The UK has put forward the acceptance of the above bullet point that the state recognises that sex and sexual identity (again, see B. v. France, [1992} and subsequent rulings) are the same thing in regards to domestic law (where it is known as 'sex') and how that relates to Article 8 rights (where it is known as 'sexual identity') and how ECHR judgments are to be read and incorporated into domestic law (i.e. a judgment made in regards to 'sexual identity' is one that applies to the concept of 'sex' within UK)

• And again, this time in para 66, the UK uses the term 'sexual identity' in its argument;

"As a result, an employer had no means of lawfully obtaining information from the DSS about the previous sexual identity of an employee."

again recognising that this is sex within UK law. This is noticeable as they highlight that an employer is unable to establish the sex of the applicant from the NI number itself as it didn't contain any reference to her sex. The UK argument then continues, recognising that gender, sex, and sexual identity are all synonmous in both its argument and the fact of domestic law In full the relevant text reads (bolding my own to highlight the specific areas pertaining to this in the argument);

"[...]the Government submitted that an employer was unable to establish the sex of the applicant from the NI number itself since it did not contain any encoded reference to her sex. The applicant had been issued with a new NI card with her changed name and style of address. Furthermore, the DSS had a policy of confidentiality of the personal details of a NI number holder and, in particular, a policy and procedure for the special protection of transsexuals. As a result, an employer had no means of lawfully obtaining information from the DSS about the previous sexual identity of an employee. It was also in their view highly unlikely that the applicant's employer would discover her change of gender through her NI number in any other way."

Again we return to the importance of a term you're no doubt beginning to hate; lateral reading. Having now seen all of this it is necessary to return to para 71-74 where in para 73 the Court notes (and again, bolding is used to highlight the specifically important part in this part of understanding the judgement);

"The Court recalls that it has already examined complaints about the position of transsexuals in the United Kingdom (see the Rees v. the United Kingdom judgment of 17 October 1986, Series A no. 106, the Cossey v. the United Kingdom judgment, cited above; the X., Y. and Z. v. the United Kingdom judgment of 22 April 1997, Reports of Judgments and Decisions 1997-II, and the Sheffield and Horsham v. the United Kingdom judgment of 30 July 1998, Reports 1998-V, p. 2011). In those cases, it held that the refusal of the United Kingdom Government to alter the register of births or to issue birth certificates whose contents and nature differed from those of the original entries concerning the recorded gender of the individual could not be considered as an interference with the right to respect for private life (the above-mentioned Rees judgment, p. 14, § 35, and Cossey judgment, p. 15, § 36)."

"[...]concerning the recorded gender[...]". That term is not made up wholesale, nor plucked from thin air by the Court. It arises from all the previous cases cited within that paragraph, cases specific to judgements in cases involving the UK. In other words, cases whose judgements recognise that gender and sex for the purposes of UK law when used in the concept of personal identity are the same. And as we've already seen from B. v. France and subsequent cases this is a matter recognised and accepted by both the Court and the UK as being a matter of 'sexual identity' which then became known as 'gender identity'

So once more back to the lateral reading. How do we know the above is true? Because in para 64 the UK government uses the term 'gender identity' in regards to the recognition of the applicant's sex, then going on in para 65 to recognise this as being the same as 'sexual identity', and as already noted above that 'sexual identity' and 'sex' are also the same thing within law. This is confirmed by the Court in para 76 of its judgement

It's further confirmed in a para outside the ones I've previously indicated (which is where the importance of reading in whole comes in). In para 82 the Court notes the UK itself recognises the concept of gender identity as a legal attribute as that being of sex, citing Bellringer v. Bellringer in doing so (bolding, etc, etc);

"amongst all the others, must inevitably take on decisive significance for the purposes of legal attribution of gender identity for transsexuals (see the dissenting opinion of Thorpe LJ in Bellinger v. Bellinger cited in paragraph 52 above; and the judgment of Chisholm J in the Australian case, Re Kevin, cited in paragraph 55 above)."

All of this is not mere fluff, but feeds directly into the final aspect of the judgement rendered by the Court in para 71-93 where it notes;

"[...]that the respondent Government can no longer claim that the matter falls within their margin of appreciation, save as regards the appropriate means
of achieving recognition of the right protected under the Convention. Since there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, it reaches the conclusion that the fair balance that is inherent in the Convention now tilts decisively in favour of the applicant. There has, accordingly, been a failure to respect her right to private life in breach of Article 8 of the Convention."

From 64-67 flows the recognition by the UK government that 'sex', 'sexual identity', and 'gender identity' are held to be synonymous both within community jurisprudence and within domestic law. This is further recognised in para 71-75, particularly in para 73 where the Court specifically uses the term 'gender' when referring to the above as part of its judgement, and further recognised not only in part, but in the whole of the specific area of the judgement pertaining to the finding of a violation of Article 8 rights in para 71-93

Reading and understanding judgements is not as simple as non-lawyers believe it to be. It is not possible to read a judgement simply from start to finish. Each following paragraph of a judgement rests on those that came before and often reference back to them, either explicitly or implicitly, requiring that those previous paragraphs now be re-read within the context of the determination of later paragraphs. Likewise it is important to understand how mutatis mutandis plays its role when other cases are cited within the judgement. Those cited cases can, and often do, require an alteration of the understanding and reading of the previous paragraphs that it now relates to, as well as matters arising within the current paragraph, and matters rising in later paragraphs

And therein lies the importance of the other cases I referenced to you

X and Y v. Romania ruled that it was a breach of human rights to require somebody undergo gender reassignment surgery before a change of legal sex (again noted in the judgement as that being a matter also known and referred to as gender). So no, the argument that ECHR rulings only apply to post-operative transsexuals is incorrect and has been since 1994 (again, that seeming anomaly of time being a function of community jurisprudence) and that the ruling is as equally binding on all member states as it is Romania (this arising from the Convention treaty itself) from that date or the date that they joined the Convention, whichever is later

In A.P., Garçon And Nicot v. France the ECHR ruled that it was a breach of human rights to require somebody sterilizing surgery or treatment for legal gender recognition. As noted above, this is binding precedent since 1954 and likewise binding on all member states

And that leaves R.K. v. Hungary from those cases I cited (there are others, but these three will suffice). Again, the ruling here is binding on all member states. And at the very top of the judgement is the precis of the case, that being;

"Art 8 • Positive obligations • Private life • Transgender person unable to have “sex/gender marker” on birth certificate changed to match gender identity due to lack of regulatory framework • Domestic authorities’ failure to provide, at the material time, quick, transparent and accessible procedures for legal gender recognition"

This was a case whose judgement was issued this year and rests on the previous judgements going back to Goodwin v. UK because of the ECHR's requirement to produce judgements to be as consistent as possible across time, but to also recognise that the Convention is a living document whose understanding changes with time. And now note how the determination is made that a sex/gender marker on a birth certificate is one that represents a person's gender identity in regards to Article 8 rights

Incorrect. See A.P., Garçon And Nicot v. France, X and Y v. Romania, and R.K. v. Hungary as to why

Why have birth certificates at all? Or ones that record sex? The state does not need official documentation of our sex for any purpose. Matters of discrimination are handled by the Courts & Tribunal service, not the government or Parliament itself, should it reach that far and they are more than sufficient to make a determination on somebody's sex for the purposes of that case within the time that the alleged act of discrimination occurred

The state does not need official documentation of our sex for any purpose.

Really? How will they plan e.g. healthcare provision, or track equalities without it?

Consider it in terms of medical information, as that tends to be easier, Medical information about yourself is the second most private form of information that most individuals have, and because of Article 8 rights the state has no right to just demand that information without your consent, except in extremis

As an example. Should you need to apply for any form of disability benefit you must agree and sign (or otherwise show acceptance) a consent form within the applying document. The state can't just take that information. They can't just demand that information from your doctors or medical teams. They need your consent first. And, of course, you're free to withhold it. It means that the DWP cannot make an fair assessment of your claim and will therefore reject it, but you're still free to withhold consent to your medical records and information being accessed

Compare that to Covid. That was determined to be an emergency. A matter of extremis. At that point the government made the determination that it or its duly appointed representatives may now access your medical records without your consent. This was done to draw up the shielding lists and to allow for individuals without support, such as being able to obtain groceries because they were shielding, to access that support

And now wrap that all together under the Article 8 right to autonomous self-determination. You are free to withhold symptoms from your medical team, or even not to seek help, or diagnosis, or treatment. You make a determination about your private information in regards to your health (for instance, you may suspect that you are autistic or ADHD or both from symptoms you experience, which means you're defining an aspect of private information about yourself) and then can make the choice to have that information kept private from everyone, or to have that information kept private to healthcare providers, or to make that information available to a wider group, or to even make it public knowledge

Healthcare provision falls within the remit of the NHS. They can handle that matter from the information given to them by their patients, which is already the case anyway

And inequality can be tracked the same way it is now. Information gathered from court cases, reporting by companies, and surveys to gather data on whether an individual has experienced discrimination. The state doesn't need to keep a record of that person's sex for those purposes and they certainly don't check the information provided against the register of birth

No way. Please don't sleep walk into this.

The reason a lot of Tories supported Brexit is it's an opportunity to do away with our human rights.

Not the rights of whatever bogey man they want you to think of - whether that be criminals, or illegal immigrants - or, now, transwomen - but ALL OUR rights, me and you.

They want to do this, to make the UK more "competitive" i.e. to make it easier for corporations to exploit our labour, and sell us stuff, and to control us, without pesky laws protecting our basic rights as human beings.

If we did away with the EHRC and the GRA, what law would protect discrimination against us as women? The law might see transwomen as men, but what good is that if there's no legal mechanism to protect us from discrimination in favour of transwomen, or of men? If it becomes legal for employers or service providers to discriminate against you as a woman, or because you're pregnant, or a married / unmarried woman? Women fought tooth and nail to get discrimination recognised in law. We all take it for granted now, but it can be taken away much more easily that it's won.

I'm all about protecting single sex spaces - I've spent a huge amount of time over the last 5 years campaigning for SSS and for women's rights - but getting rid of the EHRC isn't the way to do it. Be very wary of those who tell you it is.

When the EHRC was written, it didn't seem necessary to define the word woman. It needs clarification that single sex means just that - this is what Sex Matters are campaigning for, and is the sensible position.

The picture is of women in Afghanistan in the 1970s. They had a world more freedom than they have now. I'm not suggesting that the Taliban are about to take over here! But don't assume that women's rights can't go backwards. We need to keep defending them to keep them. Please don't let people trick you into giving them away.

Sex matters when it matters; and when it matters its usually women and children who are vulnerable.
It would be too easy for abusive men to hide, if they could hide their legal sex.

If you can show any science or medical pathway that defines that an individual may move through time at a different rate to the standard 1 second per second then the matter of self-determination of a date of birth may be a relevant argument. But there is not and so it is not. That scientific and medical information exists for gender identity as noted in the Goodwin judgement and subsequent judgements. You may not agree with them, but that does not mean they do not exist nor does it mean that they're not accepted by reputable medical establishments and systems, and likewise human rights law

For parents; it is your parents that determine their information to be placed on the birth certificate. The mother may or may not have changed their name prior to the point of a birth being registered, and may or may not have done so after that point. As the change of name is almost always legal, the name of the mother would not match that which is on the birth certificate. Self-determination in action. And likewise there is no paternity test carried out if a father is listed on a birth certificate. It's just done by self-reporting by the registering parent. Likewise in the matter of the registrations of same sex parents

As for place of birth, again as above in the first point, if you can show a scientific or medical pathway that shows a person can go back in time and choose to be born in a different place you'd have a point. But they cannot so you do not

Well there's be no 'mother' or 'father' to name on the certificate in your brave new world.
Why don't you start a new thread, if you want to continue this thought experiment? Lets not risk derailing this one.

That is incorrect as that is not how the Convention or ECHR works. The Convention is a living document under its own specifications. And under its specifications it recognises that human rights are fundamental. They may be recognised at different times as society changes, but as human rights are fundamental the Convention itself does not allow for the ECHR to roll back or remove human rights

Nor would challenging Goodwin overturn any following court cases. The ECHR isn't bound by its own previous rulings. And in truth the Goodwin ruling has already been significantly changed since 2002 by subsequent cases building on it. It isn't about challenging Goodwin. You'd have to challenge and seek to overturn every judgement by the ECHR on this, and even then you would not succeed because the ECHR recognises human rights as being fundamental. Human rights can be recognised, but not removed

Incorrect. See A.P., Garçon And Nicot v. France, X and Y v. Romania, and R.K. v. Hungary as to why

Your medical records aren't recorded by the state. They're recorded by healthcare systems which are separate to the state (that's how private health care can and is something that exists in the UK). The primary healthcare providers in the UK (mostly GPs) are private healthcare providers with contracts with the NHS

Incorrect. See my breakdown of the case, and of the particular importance of A.P., Garçon And Nicot v. France, X and Y v. Romania, and R.K. v. Hungary since then

Your last sentence is incorrect. See Goodwin v. UK, A.P., Garçon And Nicot v. France, X and Y v. Romania, and R.K. v. Hungary as to why it is recognised as an Article 8 human right

Incorrect. See A.P., Garçon And Nicot v. France, X and Y v. Romania, and R.K. v. Hungary as to why

Because it would also breach A.P., Garçon And Nicot v. France, X and Y v. Romania, and R.K. v. Hungary, amongst others, and as those cases have demonstrated breaching an individual's human rights not only define those human rights in law, they also lead to the respective governments having to pay out compensation to the person who's human rights they've breached

You'd end up back in the same place, the repeal of the GRA placed on immediate hold by injunction from the ECHR, and the state having to pay out large sums of money to very many trans people for violating their human rights

Nor does repealing the GRA relieve either the state or the courts from applying the rulings in Goodwin, etc. It's merely a mechanism. The courts themselves are still bound by the precedent and if no other mechanism exists they do have the power to issue court orders requiring a change of sex be recorded by the state

Which part?

Children or other

Can we ensure women have single sex spaces?

By looking at definition in EqA?

I also assume we cannot be compelled to use gender based pronouns

It looks like there's an attempt to undermine the thread, and if too many posts are deleted Mumsnet might delete the entire thread, so I'm just in the process of archiving it.

You mean the way current birth certificates list 'Parent' as the second field? No reason that cannot be done for the first

You can't enforce single sex services or equality law if 'sex' is only recorded within medical records. Either 'sex' becomes meaningless, or medical records become less private.
Sex is not information that needs to be kept a secret. This is a thought experiment, start a new thread.

That is apparent from the cases I cited. Those judgements are readily available to read by the public

Given any definition by definition (pun intended) would be a definition of legal sex by being a definition of sex within law then both previous ECoJ and current ECHR rulings would both still apply

What is the scientific and medical evidence which supports the concept of gender identity? Gender dysphoria is a recognised medical condition. But gender identity as a universal characteristic possessed by human beings is heavily contested.
in any event, it’s not the same as sex, which all the science tells us cannot be changed.