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/

I think we've all agreed that if a GRC has no bearing on accessing women's rights and spaces then nobody cares how many are handed out, no?

Have fifty! Change 'gender' every week! Just be sure to stay out of women's places, spaces and rights.

They did?!

Good god. They seem to change position with every sentence. None of this is making anything clearer or easier for service providers.

FWS lawyer is wonderful

They did?!

But did they realise they did??!!

I'm not sure as she seemed to change her stance depending on what the judge asked her!

Personally I don't believe people should be able to change the sex on their birth certificate. Also the GRC also allows male people to falsely state they are female for the census. Also I don't agree with the privacy clause. I think it makes it practically difficult for women to assert their boundaries and for service providers to apply the exceptions even if the law is on our side.

https://thecritic.co.uk/secrets-and-lies/

Agree on all counts. All those things should be changed.

Have just read this synopsis of today and am none the wiser.

Are they all speaking the same language, or at least using the same dictionary to say what the words being used mean.

Its like the issue itself. Everything said is conditional on the understanding of the speaker of the words used, which may not be the same the understanding of those words by the listner.

https://www.holyrood.com/news/view,court-hears-appeal-over-definition-of-woman

I'm wondering if a transcript will be available. I had thought the recording would stay up but it seems not .

This is such an important case. Can any one who knows about Scots law explain what happens next and when (ish)?

No indication of timescales, I'm afraid. The court will make a decision and publish it - 'In due course' was all they said.

So were all the submissions heard yesterday and the judges have now retired to make their decision?

I didn't really understand what was going on either but the case is ostensibly about women's fair representation on boards etc, yes?

IANAL, obviously, but I would have thought the point of that would be to combat women's inherent disadvantages which are rooted in biology. E.g. days lost in education and work due to period problems. Time off during and after pregnancy. Menopause etc. None of which apply to Transwomen, quite the contrary if they are late transitioning and have already benefited from male socialisation/preferential treatment etc.

The above is so obvious and has been laid out so often on this board (far better than I'm doing) I'm very surprised this wasn't the tack the FWS KC took. Unless he did and I'm missing something.

I'm expressing myself badly but I think what I'm getting at is that I'm not sure the FWS submission was enough to convince the judges.

Yes, both the FWS case and the Scotgov's were put yesterday.

Article upthread explains the situation quite well.

Yes, it's about representation on public boards, and yes, that's what the FWS lawyer argued, quite clearly and extensively.

Thanks Arabella

So is your opinion that it went positively for FWS?

https://sex-matters.org/wp-content/uploads/2023/10/P578-22-Petition-of-For-Women-Scotland-Limited-Submissions-for-Intervener.pdf

The above is good

Thanks LBD, that was helpful as well as reassuring.

I agree too.

Not the faintest scooby. I wouldn't begin to claim to have a handle on the blunt ass of the law.

My take, as I was there , is it went well for FWS, in the sense of the judges were certainly listening, interesting reactions at some points, they were looking at us crowd of women in the gallery, wearing the dictionary definition of Woman, seeing our reactions. One of them certainly seemed to get it. The other two, I’m not so sure. Plenty of questions aimed at SG lawyer, a lot less at FWS lawyer, who was brilliant! The other one was very unimpressive, confused, and quite sly , with a couple of her barbed comments about what this court can, & cannot do.

Either way we are expecting an appeal will happen. No idea when we will get an answer, could be before the Section 35 judgement.

Still bewildered by the verbage but the legal arguement isn't about how biological women are discriminated against.

It is whether a GRC means that "for all purposes" a trans woman is a woman when issues of equality in employment (and by default elsewhere).

And I cant for the life of me see where any arguement was made that how the GRA interacts with the EA means that Lady Haldane, in her reading of what is written in each act, that "for all purposes" a trans woman is a woman, apart for the limited exemptions that already exist re women only services was contradicted.

Which makes me want to say again, what a complete disregard for women was shown by those who drafted the EA for women. Not forgetting one of them was / is a staunch biological female Labour party adivsor.

An ordinary person would say that for all purposes women are biological women and that the exemption should have been when a trans woman could be said to be a woman, eg a marriage certificate (although that is now redundant because same sex marriages are now allowed).

Which just makes it seem that in fact so much of the drafting of the GRA and the EA was driven by a political agenda.

It is whether a GRC means that "for all purposes" a trans woman is a woman

is subject to:

“(3)Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.”

Thanks for being on the scene and reporting back!

is subject to:

“(3)Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.”

I know that's what I said.

As neither Act has changed, I am trying to find out, as I cant see it, what arguements were put forward that challenged Lady Haldane's judgement based on her reading of the 2 Acts.