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/

The Equality Act follows the GRA and the definition of sex within the EA does not include a GRC so the “for all purpose” is subject to the EA defining sex to not include a GRC.

so the “for all purpose” is subject to the EA defining sex to not include a GRC

Unfortunately by default it does, otherwise they wouldn't have written the single sex exemptions eg:

Gender reassignment: paragraph 28

Effect

739.This paragraph contains an exception to the general prohibition of gender reassignment discrimination in relation to the provision of separate- and single-sex services. Such treatment by a provider has to be objectively justified.

Background

740.This paragraph replaces a similar provision in the Sex Discrimination Act 1975.
Example

A group counselling session is provided for female victims of sexual assault. The organisers do not allow transsexual people to attend as they judge that the clients who attend the group session are unlikely to do so if a male-to-female transsexual person was also there. This would be lawful.

https://www.legislation.gov.uk/ukpga/2010/15/notes/division/3/16/20/7

But that is where argument arises. There is also the Human Rights Act which references the convention on human rights. The ECHR prohibits sex discrimination but makes no mention of the GRC because that is later national legislation. But such legislation does not change the meaning of sex under the ECHR

Not sure why you are referencing the ECHR.

All I am saying that this is about legal arguements based on Acts created by the UK Parliament.

And the mess seems to be a combination of being badly drafted and the work of some who have been networking for years to get trans / gender identies to take primacy over actual biology.

But that would be a turn up, if for instance the JR fails and then someone (more fund raising) takes it to the ECHR to try and get a definition of sex that women are campaiging for, and the Tories.

Imagine them having to rely on the ECHR to confirm that women are biological females.

But suspect that even the ECHR has also been captured.

"Government, what are my rights as a woman in law?"

"Well we know you did historically have some. But we fucked up a bit with some really bad law and back room dodgy dealing with anti-woman activists who sounded convincing at the time, and now there's a lot of people arguing them in court, it's all in terms that laymen can't understand at all, all the words appear to now be so confused that no two people in the legal system are using them for the same meaning. So we don't know, really."

"Wtf am I supposed to do then?"

"Uhm...... "

Because Article 14 of the ECHR prohibits discrimination on the basis of sex. And this is incorporated into UK law by the Human Rights Act 1998.

As I understand it, article 14 prevents discrimination on the basis of sex (and many other characteristics) in terms of being "eligible" (not the right word but it's late!) to qualify for having the human rights themselves.

Not that "no-one can ever discriminate on those grounds for anything". But yes I see why the meaning of sex could feed into that too.

'It's fine, so long as you don't make a fuss. If you do that, we may well arrest you under the new Hate Crime Act'

OP I think you are right that, although some bits of the EA assume that sex = actual sex, other bits were drafted in such a way that sex must mean certificated sex, even if most mps didn't really understand that's what they were voting for. I fear fws will lose for that reason. I hope I'm wrong.

But the other thing is that the arguments made in this case undermine SG's arguments in the other case. Here she stressed the permanence and serious commitment, the diagnosis and proof required. SG were saying this was part of how the gra interacts with the EA and explains why parliament didnt envisage a pregnant trans man. But in the other case SG say taking away the proof diagnosis etc won't have any effect on the operation of the act.

Thanks for linking. The full video has been uploaded to the page now.

https://www.scotcourts.gov.uk/the-courts/supreme-courts/about-the-court-of-session/livestream-hearings/case-P578-22

I'm finding Aidan O'Neill's arguments quite persuasive so far but the audio quality is absolutely dreadful. I can't understand why they didn't do something about the feedback on the live video feed. Hopefully it won't have too much impact on the Judges.

Because Article 14 of the ECHR prohibits discrimination on the basis of sex. And this is incorporated into UK law by the Human Rights Act 1998.

It may well do but unless you or another group is going to bring a case against the Lady Haldane ruling, the proceedings are about interpretation of Acts of Parliament passed in the UK.

Did any of the legal representatives during the hearing raise this as an issue, if not that it is part of the "evidence" or submission.

And, as an afterthought, if this is part of an Act passed in 1998 and no one when passing either the GRA or the EA at a later time raised that any of the wording of the new acts contravened the earlier act, presumably it isn't consider to do so.

Well there's a whole new court case.

How the House of Commons passed a bill(s) that contravened the Human Rights Act they past in the previous decade.

Lady Haldane had “got it wrong”, he added, giving a series of illustrative scenarios.
Were she correct, biological men with GRCs showing a female identity could access all-women shortlists used by parties to pick candidates, undermining a positive discrimination measure, he said.
Similarly, transgender women would be able to access single-sex spaces intended for biological women including rape counselling services as there would be no legitimate grounds on which to exclude them.^^

https://www.thetimes.co.uk/article/scottish-governments-definition-of-woman-branded-utterly-unworkable-s2cz607bm
This is available to read at https://archive.ph just paste in the link above.

^^ I dont know why they keep claiming this as it is in Lady Haldane's ruling that she acknowledged the single sex exemptions, as did Nicola Sturgeon when interviewed the next day (and some other minister). It seems bizarre they keep repeating it.

On 2 if not 3 other threads about this ruling and quoted the extract from the Lady Haldane ruling that says this, but quite honestly cant be bothered to do it again.

Why do they keep saying it.

Lady Haldane ruling acknowledges single sex exemptions:

So far as the perceived difficulties that would arise in the setting up and administration of single sex spaces are concerned, appropriate protections were provided in paragraph 28 of schedule 3 to the 2010 Act. This provides that a person does not contravene section 29 (which states, read short, that service providers must not discriminate against a person requiring that service) if the conduct in question is a proportionate means of achieving a legitimate aim. (P16)

Thus through the lens of paragraph 28 it was perfectly possible to operate the provisions of the 2010 Act relating to single sex services, although a proportionality assessment might, depending on the circumstances, be required. In summary, the examples proffered by the petitioner did not give rise to the conclusion that “sex” in the 2010 Act could only and always mean biological sex or sex recognised at birth, rather the 2004 Act and the 2010 Act worked in harmony paying respect to the proposition that, as a matter of law, a person who obtains an acquired gender under the 2004 Act has an acquired sex for all purpose and therefore a person’s sex can, as a matter of law, be changed. Appropriate exceptions to that proposition were recognised in the legislation itself. P17)

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2022csoh90.pdf

In other words all her ruling did was state that how the EA and GRA operate has not changed. ie where proportionate / legitimate services can be single sex.

The fact that some people (particularly in Scotland) say TW with GRA are included in single sex services is just wrong. And the SNP chose not to correct this.

And in fact it is a shame more women's groups in Scotland, having had a Judge confirm the single services are allowed, should have meant more groups could have used this to argue for single sex spaces.

I cant understand why anyone would state in a court something that can easily be evidenced as not true.

(This doesn't mean I think it is okay that we are only allowed these miserly limited occassions for single sex services. But I dont see how saying it doesn't exist helps arguing a case in court.)

I am never going to read that dreary ruling again, but have done so and posted the excerpts here, and will bookmark and re-post everytime someone says the Lady Haldane ruling changed the existing "balance" between the GRA and the EA.

(Obviously this doesn't apply to the new GRR should that become law in the UK Government fails in their case.)

And in fact it is a shame more women's groups in Scotland, having had a Judge confirm the single services are allowed, should have meant more groups could have used this to argue for single sex spaces.

Those who rely on funding from the Scottish Government cannot do so as the funding is only available on the basis that it is mixed sex - forwomen.scot/29/12/2019/funding-conditions/ and the SG (deliberately one can only assume) give conflicting statements as to how this affects the allowed single sex exemptions.

"Quite. It's naughty to notice your loss of rights and that you're now a sub class of lesser kind of human who's mostly a walking resource/aid/prop for humans with penises. Who definitely don't have an identifiable sex class and neither do you. But we know who gets rights and who's lost them but isn't allowed to say so without being punished on a binary sexed basis. We identify as this not being batshit.

Look. Nice women would just put others first and subordinate themselves quietly. Honestly, you're turning this fuss over wanting rights and equality into a culture war, and all your answering back and pointing out inconvenient facts is just as bad as the ones doing the raping and threatening to kill everyone. No, they're not getting arrested. Because crimes against women aren't really crimes, are they? We identify as this making sense and being morally ok too."

Why do you keep saying the proceedings are about interpretation of Acts of Parliament passed in the UK when I talk about the Human Rights Act 1998 which was passed by the UK Parliament? Not only that but interact with the Scotland Act 1998 which rules that the Scottish Parliament has no competency to pass laws in breach of it?

As for “no one when passing either the GRA or the EA at a later time raised that any of the wording of the new acts contravened the earlier act”, I have already pointed out the clause written in the GRA that says it does not override other Acts when it says ‘for all purposes’.

But I see you have now started quoting Nicola Sturgeon in defence of your argument which rather blows your credibility.

Did any of the legal representatives during the hearing raise this as an issue, if not that it is part of the "evidence" or submission.

From your first post:

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).

OP I think you are right that, although some bits of the EA assume that sex = actual sex, other bits were drafted in such a way that sex must mean certificated sex, even if most mps didn't really understand that's what they were voting for. I fear fws will lose for that reason. I hope I'm wrong.

s212 of the Equality Act says: "In this Act..."woman" means a female of any age". So the definition has to be consistently used throughout the entire Act. It can't mean one thing for pregnancy rights but something else for women-only book club membership. It's either actual sex or certificated sex throughout, it can't chop and change to suit the Scot Govt's whims.

Exactly ie the Scottish Government is breaching their right under the EA toprovide women only services.

That is the issue, as much as the muddy wording, is that people in positions of power, political parties, funders, the media dont even follow the law even when as with Lady Haldane, clearly illustrates that the law is written to say that single sex services are permissable.

But I see you have now started quoting Nicola Sturgeon in defence of your argument which rather blows your credibility.

Well done for missing the sarcasm, which was about the extraordinary situation that Nicola Sturgeon was happy to confirm that the Lady Haldane ruling confirmed the right to single sex services, whilst her own Government was telling groups we wont fund them.

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).

And I asked if anyone during the proceedings argued this, because if they did and if it is accepted, then clearly the GRA intereacting with the EA was drafted and became law throughout the UK in breach of "fundamental human rights".

In fact laws and how they are drafted and agreed is so potty, it might well be the case.

But that doesn't change the fact that this case is being heard in the UK and is about how UK law works.

As I said earlier, it may well be, assuming anyone can afford it, that there is a case to take the isse to the ECHR, but I cant see UK law makers going, oh my goodness, silly us, we drafted and accepted a law that breaches the HRA!

But maybe a brave judge would.

And I asked if anyone during the proceedings argued this

what are you on about?

“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).”

what are you on about?

dear oh dear, you seem determined not to understand.

Can you quote me what was said in court that referenced the HRA? And what the response was?

(I note that you haven't been able to answer the fact that both the GRA and the EA were drafted and passed after the HRA and at the time and since then no one has said they breach the HRA.)

OP you have linked to Sex Matters intervention.

Do you not understand how these things work? Each side and any intervenors present their case in writing to the court. What is said in court is only part of the case - it is each side’s opportunity to respond to the other side’s case (which is in writing). Occasionally tribunals have ‘paper hearings’ where no one turns up in court at all and judgement is based solely on the paperwork.

In terms of your last statement, I suggest you read the documents you linked in your first post.

As well as their KC's speaking note, there are now also transcripts of the Scot Govt KC's oral presentation to the court and FWS KC's reply.

https://forwomen.scot/02/10/2023/note-of-argument/

I'm struck by how the Scottish Govt argued that when the Equality Act was enacted it was done "in full knowledge of the Gender Recognition Act and a proper understanding of the process of acquiring a GRC", yet at the same time they couldn't possibly have anticipated that the (non-surgical) process of acquiring a GRC meant women could still get pregnant.

Followed by: woman is not, in the context of the pregnancy, a defined term.

Is this really the best legal argument they could come up with? Reading through the transcripts, it's all a bit bizarre.

It's a bit worrying though that the judges seemed to have convinced themselves that the single-sex exceptions could work well to provide (actual) women-only spaces, even if sex was defined as certificated sex in the Equality Act. Seems to have passed them by that under that definition the law could only have as a legitimate aim the provision of single-certificated sex spaces. And how do you exclude a (certificated) woman from a (certificated) women-only space?