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.

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."

We have already commented on the misogyny of this argument. What point are you trying to make @LowKeyLockee?

Their view was that men given the legal status of women would have no detriment to others in society. We disagree. This has an enormous negative effect on women and children. This is what the whole discussion about repealing the GRA is about. Perhaps you should spend less time writing long legal discussions and more time engaging with the arguments that allowing men to be legally women is a disaster for actual women.

I'm still catching up with this thread, so someone else may already have replied to this, but how can anyone decide whether someone has been a victim of sex discrimination if sex isn't recorded anywhere?

You can gas as many millions of your own citizens as you want to provided you have a suitably powerful army. It doesn't matter one bit what the United Nations or ECHR has written down on a piece of paper. (I'm not saying this is good, I'm saying this is how the world actually works.)

The 21st century will be a story of us realising that natural rights don't actually exist after all, no matter how much we might want them to. We are seeing this tension more and more in many contexts (what is the meaning of a "right to claim asylum" in a country that has no resources to share with you, or a "right to food" in a world where there is not enough to go around? when push comes to shove, it is meaningless).

The question becomes which flawed, well-meaning human institution is the best one to handle the balance of conflicting rights in our messy, imperfect world. I personally think that institution is Parliament.

And while we're at it, the Good Friday Agreement at the end of the day is also a piece of paper. The current situation in NI (while certainly an improvement on what it was in the 80s) is inherently unstable for other reasons, e.g. Brexit - we will need to go back to the table sooner or later anyway. New treaties can be drawn, new laws can be drafted.

The GRA is a nonsense law and I agree it needs to be repealed. Trying to work around the edges of it is just playing (although I respect everyone who tries to do what they can in the meantime!)

The problem in part is lefty lawyer interpretations and the un is a pretty left organisation. The eu too, in the anti democratic group think way.

There’s a stranglehold on this I agree and it benefits men not women

It’ll get strained as pp says when resources and migration changes

Post war period will be segue to what’s next

No one will do it for women sadly, but the set up is going to get tested

I thought it was interesting that that poster consistently used the word 'judgement' when talking about legal decisions. I'm pretty sure the correct spelling is 'judgment' (that's what it says on all the court judgments I've seen, including the ECHR ones).

Seems odd from someone so keen to show off their knowledge.

Your language is strangely AI

That's exactly what I was thinking.

I think that it's a yes and a no. If the UK left the Council of Europe then the European Court of Human Rights would refuse to hear any case brought against the UK so you are right. On the other hand, any NI resident who believed that their human rights had been impacted would still have access to the NI/UK courts all the way up to the Supreme Court. Given the number of references to the ECHR in the GFA, every one of these courts would make a decision firmly based on the latest relevant ECHR case law and make it clear in the judgement how and why they had done so. So NI residents would effectively still enjoy ECHR protection.

Pay inequality data is acquired through companies reporting figures and the results of surveys, for example. The state does not compare those responses against the register of births

If nobody has an actual sex and just makes one up according to how they feel, then the sex (gender) pay gap disappears. This ridiculous statement could only have been written by a man (or a bot).

What an incredibly revealing response 👀

Which by definition includes the right to legally change sex…

But in any case I don’t agree - access to the courts necessarily implied access to the ECHR itself. This is not just semantics - the GFA followed a period of an entire community not trusting UK courts to protect their rights (with some justification). So the reference to courts wasn’t an accident - it was a specific and conscious negotiating ask from nationalists to ensure they would have recourse beyond UK courts.

Could be. There's a slight air of panic about these posts.

I remember years ago we used to get pompous screeds of text about the EA and the terrible statutory code and all the reasons it was simply impossible to challenge, written in similar florid and obfuscatory language. The intention was to intimidate women from reading, discussing and understanding the law for ourselves and working to change it.

Well, here we are a few years later and after a lot of slog from a lot of dedicated women, there is no extremely high bar on excluding ALL men from women's spaces, service providers do not have to do a case-by-case assessment on every individual who seeks to use their service and there is no requirement to treat someone with a GRC as their desired sex in all circumstances. We've got much better, more workable guidance from EHRC and the government has confirmed it intends to clarify the meaning of sex in the EA.

@PlanetJanette is there any way for NI residents to get access to "neutral" courts specifically for "Ireland question" issues only? I can see why they would want a neutral arbiter for things like Catholics being discriminated against or something like that. But I don't see why something like the GRA would be a nationalist/unionist issue

I liked Bellringer v Bellringer too.

I have no desire for the UK to leave the Council of Europe. There may be judgements that I don't like but that's life and, on balance, it protects the individual against the state.

Your point on the right to legally change sex is interesting. So the UK leaves the CofE to be able to repeal the GRA. The repeal is challenged in the NI courts who rule that repeal would be in breach of the ECHR and, hence, a breach of the GFA and strike it down. Gender reassignment isn't a devolved power in NI so the repeal would be struck down in England and Wales as well as NI.

Finally, access to the courts didn't imply access to the ECHR. Inter-governmental agreements don't imply anything, they can't afford to. Had the GFA intended to guarantee access to the ECHR, it would have been specifically included. The only reason that I can think of for not including it is exactly what we're talking about - the UK Government didn't want the GFA to bind it to the ECHR in perpetuity. I wouldn't like to suggest that they might have been a little disingenuous but.....

and, on balance, it protects the individual against the state.

There are countries not part of it outside Europe. I can’t say as an individual I’ve felt at risk from the state living there.

Plus if you look at top ten countries it’s a mix of those in and out of ECHR.

I see there's a tag team. They are definitely rattled by #RepealTheGRA and the shifting overton window.

You’re right the the Good Friday Agreement is imperfect. Most peace agreements are. But glibly declaring it can be renegotiated shows either lack of understanding or lack of care for the implications for Northern Ireland if the GFA was essentially scrapped.

The ECHR comes as a package - you don’t get auto pick and choose.

One very obvious reason it would be a nationalist or unionist issue is that if we left the ECHR and repealed the GRA, Irish citizens in Ireland would continue to enjoy an ECHR right to legally change gender while Irish citizens in NI would not.

That prospect of divergence is one reason the ECHR was part of the basic human rights infrastructure in both Ireland and Northern Ireland.

No your second para is riddled with errors.

The UK courts cannot strike down an act of Parliament. In the situation you describe, the repeal would have effect but the Good Friday Agreement would be dead.

As for what is meant by the courts, it’s just wrong to say it wasn’t intended to include the ECHR given the specific context.

Not sure if you’re referring to me but I find it a bit odd that your regard legal facts as an agenda if so. You could just explain if and why you think I’m wrong on the facts.

So you are saying we are subject to any arbitrary "rights" that the ECHR decides to impose on us? Just because Ireland is subject to them?

In that case I'm not glibly suggesting the GFA be repealed I'm passionately making this my new cause. That's not an acceptable situation to me

No, you're alright

But I would be interested in your view on whether repealing the GRA would be desirable, leaving aside for a moment your views on whether it is possible.