Sex Matters to intervene in For Women Scotland case (4th October 2023)

[IwantToRetire]

Sex Matters has been given permission, as a human-rights organisation, to intervene in the For Women Scotland case being heard by the Court of Session Inner House in Edinburgh on Wednesday 4th October.

Our submission will urge the court to consider whether Lady Haldane’s interpretation of the meaning of sex in the Equality Act is consistent with the European Convention on Human Rights.

The case concerns whether it is lawful for the Scottish Government to tell public bodies to include men who have transitioned by obtaining a gender-recognition certificate (GRC) when considering whether the legal quota for female board members has been met as part of the Gender Representation on Public Boards (Scotland) Act 2018. In December 2022, Lady Haldane ruled that the Scottish Government’s approach was lawful, saying that the definition of woman in the Equality 2010 Act includes biologically male people in possession of a GRC, recognising their “acquired gender” as female.

Sex Matter’s intervention supports For Women Scotland’s appeal against this judgment. It argues that it is wrong in law because it did not consider the impact on fundamental human rights protected by the European Convention on Rights, as legally required by the Human Rights Act (1998).

Our legal argument is that changing the definition of “man” and “woman” in the Equality Act to include members of the opposite sex undermines protections under the European Convention, including Article 3 which covers inhuman or degrading treatment. The European Court of Human Rights has already ruled that being searched or intimately examined by a member of the opposite sex can fall foul of this provision. Blurring sex categories also infringes on Articles 9, 10, and 11: freedom of belief, freedom of speech and freedom of association.

Our legal submission is supported by our research on single-sex services, which has been made available to the court: this found that many previously women-only groups and services are coming under pressure to include men who identify as women.

We are also continuing to call on the government to resolve the issue through legislation rather than leaving it to courts, which may not consider the impact on wider human rights.

Sex Matters is represented by David Welsh of Axiom Advocates and Rosie Walker, Head of Litigation & Dispute Resolution, Gilson Gray LLP. We will publish our intervention on Wednesday 4th October.

More at https://sex-matters.org/posts/updates/sex-matters-to-intervene-in-for-women-scotland-case/

This was, I think, but I might be wrong, shared in the last WESC. The EHRC talked about this specific issue (whether 'sex' means biolgoical sex or whether a GRC changes your sex for all purposes), and basically said it was up to the courts, they weren't going to get involved.

They looked very relieved at having handed off the problem to someone else.

And I suppose this case today is the court trying to work it out.

Here:

https://www.mumsnet.com/talk/womens_rights/4847393-wesc-scrutiny-session-of-ehrc-today-at-145pm

Back to the court today: AN says he'll stop mansplaining what feminism is, and I believe got a laugh out of the judge.

'It would be the government’s responsibility to come up with a clear definition of biological sex, ahead of any formal clarification of the UK’s equalities legislation, Falkner said.
“We didn’t define biological sex – we think it’s for government, with all legislation, to define what its terms are,” she told MPs. “So we leave it to the government, but I think most people would recognise that biological sex is a categorisation which accords with reproductive functions.
“So a woman is a person whose body is designed to produce eggs and a man is a person whose body is designed to produce sperm. We’re not scientists, this is not the definitive word on it, it’s for the government to decide on how they wish to define it.”'

From the WESC meeting I linked to upthread.

https://www.theguardian.com/society/2023/jul/12/clarify-equality-act-to-better-distinguish-sex-and-gender-ehrc-chair-tells-mps

its driving me bonkers.

I'm going to have to read the tribunal tweets thread later as the sound bouncing all over the place is awful.

Yes, I'm afraid I've got too much to do today to try and keep up/work out what's going on.

I hope it goes well ... seems like this could be phenomenally important.

Me too am reading the tweets

This is really important isn't it. I'm following on tribunaltweets2. It's all about how the law handles different concepts eg woman, female, sex, how the gra interacts with the ea2010 and the 2018 act about public boards, so it's quite legalistic & abstract. But this is fundamental stuff. Is sex in the EA a person's actual sex (the barrister is using 'actual sex') or certificated sex? Obviously he's arguing it has to be actual sex. Presumably the Scottish government will say no, it's certifucated sex. Or they will reject his framing and try and re-orientate the whole thing towards genderwang.

I think a few years ago you would be unlikely to hear someone arguing in court that whatever someone does in terms of grc's and the pc of gender reassignment, we all retain an actual sex and that can't change.

Yes. I have no idea whether or if this might impact on E&W law.

It certainly should have a bearing on the current GRR/Section 35 case, which is awaiting a judgment, and I think did mention that this case would impact on it?

2pm for the Scotgov's case.

Bloody hell, two gender things in court and I can't watch either of them. This one does look very important. I'll try and catch up on TT/TT2

Thread 2 from Tribunal Tweets:

https://threadreaderapp.com/thread/1709522787159691470.html

AN's conclusion (Copy-pasted from Tribunal Tweets):

'My conclusion: provisions for women must remain for all women incl eg FMc. [Freddy McConnell] Possession of a GRC will not involve removing provisions for females of any age. This contrasts with SG [Scotgov] position which involves compromising women's rights. Granting them to males with a GRC and excluding women with a GRC. Upholding the reclaiming motion will leave GRA to operate as Parliament intended.
GRC allows birth certs and death certs to reflect acquired gender but given we now have same sex marriage and = pension ages, GR now has a symbolic value. In any event, symbols have an enduring value so symbolic value is not to be knocked.
SG approach means carefully balanced rights for women lost, compromised and made unworkable. I renew my motion. Those are my submissions.'

Someone now saying the EA is very complex and difficult to understand.

No shit.

I honestly think even half of these lawyers, politicians and judges don't really know what's going on or what to do.

'A person with GRC would be entitled to access single sex services but person with PC of GR without GRC would not

JC: may not but yes

J: What do u mean may?

JC: para 28 must be excluded, that's why I said may

J: that's different though. These are exceptions on basis on sex'

Mebbes aye, mebbes naw.

'The answer I'd like this court to reach is that sex, man woman, section 11 of EA and 'woman' is not restricted to those born and certificated as such given at birth. It extends to those who hold a full GRC in the AC (acquired gender) and the PC of sex is shared with ppl of same sex, whether born or acquired. That follows from clear terms of GRC we looked at this morning.'

Scotgov's position. Ruth Crawford KC, barrister for Scottish Government.

They're claiming that, say, Freddie McConnel would be male for all purposes, but also retain protected characteristic of maternity, for example. (if FMcC had a GRC)

Lady judge is disagreeing.

Ha, Scotgov lawyer uses 'biological women' but says it makes her 'edgy' to do so.

I can't believe we are in court arguing whether a man can have a baby.

I was just thinking the same - I've been reading this thread thinking 'how the fuck did we come to this?'

Jesus, had it on in the background and it frightened the life out of me when it started again and my laptop suddenly made a sound

I've just done the school run, gone to the shop, the post office, chatted to the kids, and they're still arguing whether a man can have a baby.

Maaaaaate.