JR of ScotGov's Section 35/GRR bill - next week

[ArabeIIaScott]

MBM have shared info on the 'interveners': Scottish Trans/Equality Network, Stonewall, Gendered Intelligence, and the ICDR:

https://murrayblackburnmackenzie.org/2023/09/11/who-are-the-interveners-in-the-judicial-review-of-the-uk-governments-use-of-section-35/

'Robin Moira White, Adam Wagner, Sam Fowles and Stephanie Davin are also assisting in the proceedings'

Clearly she has no experience of the horrific amount of work and cost required to make significant changes (which this surely would be) to ageing, patched-up government IT systems

"Haldane is calling it an 'IT problem' again."

That's so dehumanising.

<I'll get my coat>

From the BBC live coverage:

• 'Judge Lady Haldane has retired to consider whether the UK government was within its rights to veto the Gender Recognition Reform Bill passed at Holyrood
• The judge is expected to take some weeks to consider her ruling.

''The final question for the court was what to do about a looming appeal in a tangentially-related case – an appeal by the campaign group For Women Scotland in a case about the Scottish government’s definition of a woman.
Both sides in this case cited precedent from that case, which oddly enough was chaired by the same judge.
They have agreed again on the next steps – that Lady Haldane should go off to start on her judgement regardless.
If the appeal ruling was to somehow come out first and throw a spanner in the works, the thinking is that the court could reconvene and hear some fresh submissions.
But everyone will likely be hoping that the judgement is done and dusted sooner rather than later.'

And a word of the day:

'Judge Lady Haldane...tells the court she will make "avizandum", which means "further consideration".'

So now it's up to Lady Haldane.

https://www.bbc.co.uk/news/live/uk-scotland-66865088

Just to add, and this has been said over and over again, and is in Lady Haldane's earlier ruling which you can download and read that:

For "all purposes" someone with a GRC is legally the other sex but also that as specified in the EA the single sex exemptions exist to allow women only (ie biological females) services etc.. And at the time Nicola Sturgeon also said this,

The problem in Scotland was that a lot of people were going round, are still going round, saying the single sex exemptions dont apply.

And the other problem is that thanks to Stonewall etc., many more places / services could argue that they are entitled to apply the single sex exemptions, but dont do so.

That is part of the problem. The impression given that nobody actually cares about single sex provision. Including some so called women's groups.

Sorry, but yes horrifying to learn via this thread that Lady Haldane did not seem to be aware that people can get a GRC through self identifying. She presumably has read the EA that says gender reassignment includes those "intending" to transition and are currently living as the "other sex".

Baffling.

Thanks to everyone who has been updating. Overall (in particular given her previous ruling) that Lady Haldane seems most persuaded by the, um, Righteous Side, and will probably rule accordingly.

I wonder if her publicly admitted misunderstanding about Gender Re-Assignment is grounds to saying her earlier ruling was defective and should be over turned.

I do worry that women’s group (unfunded, unlike the large Scot gov funded lobby groups represented pro bono by other Scot gov funded legal groups) should have applied to be interveners in the case to put information to court counteracting the standard TRA arguments that ‘it is fine elsewhere’ etc.

I think that is a really interesting and sadly disappointing situation.

On another thread I was commenting on how VAW groups now seem to be prepared to take a political stance on all sorts of issues, the police, cost of living crisis, racism, etc., and put out joint statements. https://www.mumsnet.com/talk/womens_rights/4900356-vawg-is-a-gendered-issue-which-is-deeply-rooted-in-societal-inequality-it-is-violence-that-is-directed-against-a-woman-because-she-is-a-woman-or-that-affects-women-disproportionately

But for some reason as the very groups whose purpose is based on the reality of the sex class of women they never comment.

So given that they are prepared to take a public position on any number of other issues it is extremely worrying that this is one issue they do not / have not commentated on.

I wonder why?

Because they are funded not to.

Because they are funded not to.

As Southall Black Sisters are one of the signatories are endlessly taking out injuctions and judividal reviews, that clearly isn't the case. Ditto Centre for Women's Justice.

And in fact is more relevant because their existence is based on the acknowledged need to women only services.

In fact they wouldn't even need to get into the dodgy ground of misuing money from funding for services as presumably CWJ could have done the legal work pro bono.

No, that's not the case. Unless and until the Scottish Act goes through, it is not possible to get a GRC by self identification.

What is possible, and what LH discovered, is changing your recorded sex on your passport and driving licence (and therefore 'prove' your gender) without a GRC and amended birth certificate.

No, that's not the case. Unless and until the Scottish Act goes through, it is not possible to get a GRC by self identification.

You are right. But under the protected characteristics you can be protected by Gender Re-assignment just by saying you are on the pathway / intending to transition.

Gender reassignment
(1)A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.
(2)A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.
(3)In relation to the protected characteristic of gender reassignment—
... (a)a reference to a person who has a particular protected characteristic is a reference to a transsexual person;
... (b)a reference to persons who share a protected characteristic is a reference to transsexual persons.
(I have no idea what physiological attributes of sex means!)

A person has the protected characteristic of gender reassignment if they are proposing to undergo, are undergoing or have undergone a process (or part of a process) to reassign their sex by changing physiological or other attributes of sex (Equality Act 2010, Section 7 (1)). There is no requirement for a trans person to have any kind of medical supervision or intervention, nor to have a Gender Recognition Certificate, in order to be protected from gender reassignment discrimination. Trans people are legally protected from discrimination from the moment they propose to change their sex.
.

Sorry that's the problem with skim reading when you are meant to be doing something else. So I conflated the fact that you can be protected by the characteristic of transgender re-assignment even if not intending to "transition" with the comment re self identification.

The equality act requires that a person with a protected characteristic must not be discriminated against compared to those without. So a MAN with the protected characteristic of gender reassignment (“transwoman”) must not be discriminated against compared to a MAN without. You must not treat a transwomen differently from other men eg by excluding them from men’s sports.

A popular misconception about the relevant comparator.

Hi Robin
Can you direct me to the case law precedents that you believe back up your assertion here? Only, Legal Feminist and Sex Matters would both appear to disagree with you. It would be good to see what makes you so sure.
Thanks

https://www.legalfeminist.org.uk/tag/comparators/

https://sex-matters.org/wp-content/uploads/2022/11/Why-is-Sex-Matters-calling-for-clarification-of-the-Equality-Act-2.pdf

It was surprising that something so basic that the majority of us on here know was a surprise to her, which does make you wonder what else she didn't understand during her earlier case.

I'm glad I'm not an employer these days! Thanks to crap laws this stuff is a nightmare. If even judges can't get their head around the many loopholes the GRA created how are employers supposed to?

In my opinion it needs to go and we can go back to treating a transwoman exactly as they should be treated in law which is exactly like any other man. After all we all know you can't actually change sex.

And some surgery, some pills and a new set of clothes does not a woman make! It just makes a man who has had surgery, is on medication and has a new wardrobe!

I'll be nice to them if they are nice, and i won't be If they aren't. And any man who thinks it's OK to go into women only spaces... Well I'm sure you can imagine exactly what I think of them!

But I do know one thing as just your average Josephine I'm very much at the say what you see stage of life. If I see a man going into a women only space, no matter how that man chooses to dress or what name they give themselves, as I don't know, or give a stuff, whether they have a GRC, No GRC, have started their transition,this week, last week a decade ago. Are transitioning at all or just like wearing non stereotypical clothing, I don't care. If I'm in the queue and a man is in the queue I'll be having my say very vocally.

I'm sick of women being expected to budge up and make room for the man. No! Tell the men to budge up and make room for their male colleague who thinks he's a woman.

I have an extremely bad headache.
Is this the prostrated one of a toilet floor thread?
Thanks for the assistance.

As our legal friend appears to have missed this, I'll stick my own non-legal oar in.

My recollection from lawyers' contributions to Parliamentary committee discussions passim is that it depends on whether the trans person has a GRC or not. As most of them don't, the comparator is usually someone of the same biological sex; but if they do have a GRC it gets fuzzier and the comparator (for things like equal pay claims, but not for things like access to single sex provision) could be someone of the same sex as their GRC-stated legal sex.

Which is one of the reasons the EA needs clarifying, so everyone knows exactly where they stand.

yes

Michael Foran was also pretty clear on the comparator.

https://www.scottishlegal.com/articles/michael-foran-getting-the-equality-act-right

'the correct comparator for a trans woman without a GRC is a man without the gender reassignment characteristic. If For Women Scotland is correct, that will change if the trans woman has a GRC. The comparator would then be a woman without the gender reassignment characteristic. This would mean that the Equality Act does draw a distinction between those with GRCs and those without them, classing those without a GRC as their biological sex and classing those with a GRC as their legal sex.'

From Foran's article, above.

The EHRC on comparators:

https://www.equalityhumanrights.com/en/advice-and-guidance/gender-reassignment-discrimination

EHRC

'The Equality Act 2010 says that you must not be discriminated against because of gender reassignment.
In the Equality Act, gender reassignment means proposing to undergo, undergoing or having undergone a process to reassign your sex.
To be protected from gender reassignment discrimination, you do not need to have undergone any medical treatment or surgery to change from your birth sex to your preferred gender.
You can be at any stage in the transition process, from proposing to reassign your sex, undergoing a process of reassignment, or having completed it. It does not matter whether or not you have applied for or obtained a Gender Recognition Certificate, which is the document that confirms the change of a person's legal sex.
For example, a person who was born female and decides to spend the rest of their life as a man, and a person who was born male and has been living as a woman for some time and obtained a Gender Recognition Certificate, both have the protected characteristic of gender reassignment. '

So the comparator is a non-trans person.

The comparator is not located in one's sex; it's to do with whether one has proposed or has undertone a process to reassign sex.

But the comparator also has to have enough in common with the person to compare them.

See Citizens Advice's clear advice:

https://www.citizensadvice.org.uk/law-and-courts/discrimination/check-what-type-of-discrimination-youve-experienced/comparators-in-direct-discrimination-cases/

'The comparator is someone who’s in the same or similar enough situation to you, but who doesn’t have the same protected characteristic.
What's meant by someone in a similar enough situation?It’s not necessary for you to be in an identical situation as the comparator. But there must be sufficient similarities between the two of you to show that the reason for the worse treatment is the protected characteristic and not something else.'

A woman who isn't trans has nothing in common with a transwoman. A man who isn't trans has sex in common.

Edited for stray apostrophes. Citizens advice seems to have banished them altogether from their name ...

TLDR:

''The comparator is someone who’s in the same or similar enough situation to you, but who doesn’t have the same protected characteristic.

... there must be sufficient similarities between the two of you to show that the reason for the worse treatment is the protected characteristic and not something else.'

So the crucial point is whether there are sufficient similarities.

What does a woman who isn't trans have in common with a transwoman?

Skirts? Shoes?

As ever, it comes down to whether you think men and women are defined by their sexed biology, their bodies, or whether they are defined by arbitrary, changeable, and superficial sex stereotypes.

Is a woman a human with a sex that has been set since conception and has affected her life in myriad ways since before birth, all through childhood, puberty, periods, pregnancy, birth, breastfeeding, menopause, and will remain the same long after her body has rotted and only bones remain, or anyone who makes certain hair and lipstick choices?

It's a toughie.

As ever, it comes down to whether you think men and women are defined by their sexed biology, their bodies, or whether they are defined by arbitrary, changeable, and superficial sex stereotypes.

RMW thinks all TW over 18 are adult human females so presumably RMW would argue that this is about sex rather than gender. I wonder what miracle happens at age 18 that transforms males into females?