Ireland: Very interesting things said on what is a woman obiter dicta in yesterdays Supreme Court decision

[miri1985]

Was just reading the decision yesterday in the case about whether a cohabiting parent is entitled to a widowers pension and I thought others on here might be interested in what was said about what we understand a woman to be. I don't see how this understanding would square with the GRA . We were told explicitly when before the marriage referendum that the Government could not enact legislation with a different definition for marriage and circumvent having to do a referendum to allow gay marriage.

This is the passage from Hogan J. https://www.courts.ie/acc/alfresco/0e6360f9-3c7b-4c71-97eb-48433f587db3/2024_IESC_1_(Hogan%20J).pdf/pdf

"19. In the case of the interpretation of an ordinary word such as “woman”, the canons of interpretation are perfectly clear. It is, after all “…the cardinal rule of…. interpretation that in the absence of some special reason, a word should be given its ordinary or natural meaning in its context”: Keane v. Irish Land Commission [1979] IR 321 at 324, per Henchy J. The rationale for this was well explained by the same judge in another judgment delivered about this time, Wilson v. Sheehan [1979] IR 423 at 429, where Henchy J. observed: “The reason for that rule is that when statutes or other public or formal documents directed to the public at large…. are being interpreted, it is to be assumed, in the absence of a counter-indication, that the words used in such documents have been used in their popular rather than in any specialized or technical sense."

Massive caveat here - I am not qualified in Irish law and I have only had a quick skim of the judgment.

My understanding is Hogan J. is saying that the word "woman" should not be read to mean wives only. "Women" includes unmarried women too unless there is some clear reason why the word is meant to refer to married women only.

The trans thing isn't inconsistent with this - rather the legislation which allows one to change gender may provide a "special reason" for interpreting the word "women" in a way which is counter to its usual meaning in some contexts.

Redefining woman to mean adult human female + adult human male with a gender identity of a woman - adult human female with a gender identity of a man to me would go against what Hogan is stating as the cardinal rule that words should be given their ordinary or natural meaning

I'm not anything legal at all at all, let alone an expert, but I am a nerd☺, and a
while ago I got a bit obsessed with how the law uses language, and read, amongst other things, The Law Reform Commission/An Coimisiún um Athcóiriú an Dlí - Consultation Paper on Statutory Drafting and Interpretation: Plain Language and the Law
https://www.lawreform.ie/_fileupload/consultation%20papers/cpPlainLanguage.htm
Two passages really relating to stretching the meaning of existing laws to cover recent innovations stood out (section 4.5 I think):

'it does not allow the interpreter to transform the meaning of the text so completely that “black” will come to mean “white"' .

'this accommodation can be made only where the words of the provision were not strained beyond their ordinary meaning. Due regard must be paid to the structure and intent of the statute'.

It seems to me that abandoning the word 'sex' as used in the earliest equality legislation, for the undefined term 'gender', and changing the clear use of 'woman' to mean a woman or a man-who-says-he-is-a-woman through the GRA, is a perfect example of the '“black” will come to mean “white"' misuse of language that judges and law reform commissioners warned against.

Redefining woman to mean adult human female + adult human male with a gender identity of a woman - adult human female with a gender identity of a man to me would go against what Hogan is stating as the cardinal rule that words should be given their ordinary or natural meaning

I disagree strongly. You have missed out an important part of the quote in your reply. The quote, which is originally from Henchy J., is that "the cardinal rule of…. interpretation that in the absence of some special reason, a word should be given its ordinary or natural meaning in its context". He is talking about how you figure out what the law means when terms are not defined. You use their ordinary meaning in the absence of any special reason which points towards a different interpretation.

The GRA 2015 is a "special reason".

For example, if you have a piece of legislation that refers to "farm animals" but doesn't define the term, then it should be interpreted in line with the normal meaning of that term - cows, sheep, chickens etc. but not tigers. However, if you have a piece of legislation that says tigers are classed as farm animals for all purposes, then that changes the way you interpret other legislation.

Obviously people might have thoughts about whether it is wise to treat tigers as being farm animals, and a subset of males as being females, but that's not an issue of interpretation.

Is "woman" defined in the Irish GRA though?

Is "woman" defined in the Irish GRA though?

It is like the UK GRA in that it doesn't define men and women but does provide for a change of legal sex. This is the relevant bit of the Irish GRA 2015:

Effect of gender recognition certificate generally

18. (1) Where a gender recognition certificate is issued to a person the person’s gender shall from the date of that issue become for all purposes the preferred gender so that if the preferred gender is the male gender the person’s sex becomes that of a man, and if it is the female gender the person’s sex becomes that of a woman.

The above is subject to the other provisions of this Act though (in accordance with s18(7)), so there are some circumstances where transwomen are treated differently to women, and transmen are treated differently to men.

The outcome of the GRA Act was to change the definition of the term 'woman' to include men. Or to continue the farmyard metaphor, to allow the term 'hen' to include foxes..
So I agree, AmateurNoun, that interpretation of the law has to take the GRA's redefinition of 'woman' into account; it's the legislators who drew up and passed the GRA in the first place that I'm hacked off with. Earlier sex equality legislation couldn't have been clearer in using the words 'man' and 'woman' in their ordinary and everyday meaning. Replacing the word 'sex' with 'gender' and legislating that 'woman' can also mean 'men' is exactly turning 'black into white'. An dubh a chur ina gheal ar dhuine is an Irish saying - convincing someone black is white - meaning to fool or con someone.

By 2015 I'd have expected legislation to have become clearer, as advised by the Law Reform Commission, but instead the GRA created a legal fiction of gargantuan proportions, by saying that men are sometimes legally women, if they say they are, and by using the term 'gender' which has no agreed definition.

This is probably a stupid question, but is there any chance of getting rid of or rowing back on the GRA?
It's clear it wasn't thought through properly.

But the GRA can't change the meaning of woman or sex in the constitution. If you look at what this supreme court decision overruled, it was a piece of legislation that only protected families in the married sense, based on a 2005 piece of legislation. The legislature couldn't redefine family to just mean marital families because its a term thats in the constitution and so the legislation has been ruled unconstitutional.

Similar to they couldn't have just enacted legislation before marriage equality to say marriage can be homosexual, it would allow the legislature to overrule the constitution. Marriage in the constitution didn't say between a man and a woman but we knew it was because the drafters of the consitution wouldn't have had any concept of marriage beyond that back then just like we know their concepts of woman, man and sex are traditional.

"Laws which are inconsistent with the Constitution are invalid. There is a presumption that laws passed by the Oireachtas since the Constitution was enacted are intended to conform with the Constitution. Where legislation may be interpreted in a way consistent or inconsistent with the rights of the citizens under the Constitution, the constitutional interpretation is preferred. The Courts will therefore interpret the legislation in a manner consistent with the Constitution thereby upholding the validity of the law." https://legalblog.ie/statutory-interpretation/

IMHO in no way could you interpret the GRA in a way that is consistent with the constitution

Woman has never been defined in law, mainly because its meaning was so obvious that it was not thought necessary.

At some point within the transactivist movement, there has been a realization that it would be a massive piece of work, opening up huge scrutiny, to actually change laws so that men who claim they are women would be included legally in the group “women”.

The direct attempt to change the law was working towards the introduction of the GRA(successful) then the subsequent attempt to introduce self-ID via changes in the GRA. The scrutiny that occurred when self-ID was being introduced has indeed caused a massive spanner in the works in the UK.

However, in tandem with the attempts to change the law, there have also been strenuous attempts to change the “standard” meaning of the word woman from “adult human female” to “anyone who says they’re a woman”.

If the “standard” meaning of the word woman can be changed, there is no longer any need to change the law. Dictionary meanings have already been altered and there is a real danger that the judiciary will lose sight of the fact that when most of the laws were written, the word woman did not include any men.

Looked on in a cynical light, it’s a beautiful short cut. If “women” includes men legally, simply because they claim the title, then those men cannot be excluded from any space.

But the GRA can't change the meaning of woman or sex in the constitution. If you look at what this supreme court decision overruled, it was a piece of legislation that only protected families in the married sense, based on a 2005 piece of legislation. The legislature couldn't redefine family to just mean marital families because its a term thats in the constitution and so the legislation has been ruled unconstitutional.

Ah, I get what you mean now. However, I don't think this case is quite on point. It's not that the legislature sought to redefine families for the purpose of the Irish Constitution via the Social Welfare Act 2005, it is just that that Act only offered protection to married families.

It was a previous court decision (Nicolauo) that had decided that "family" only meant a married family for the purposes of Art 41 of the constitution. That previous decision in Nicolauo was decided looking at the wording of the constitution rather than legislation (Mr. Nicolauo argued that the Adoption Act 1952 violated the protections offered to families in Art 41, but Walsh J. said it was quite clear looking at Art 41 that it only referred to married families).

Hogan J. overruled that previous decision in Nicolauo and then found that the 2005 legislation in question violated Art 41 by not offering protection to unmarried families.

I think there is an interesting point here, but I don't think this is the right case. What would be more useful IMHO is to look at cases where the Irish courts have considered whether they should take into account the ECHR when interpreting the constitution, because we have ECtHR decisions holding that transwomen should be able to obtain legal classification as women, and from the little I have seen the Irish courts sometimes take the ECHR into account when interpreting the constitution.

Again, take this all with a massive pinch of salt as I am not Irish and happy to be corrected! :)