Scottish Govt ditch "Living as a woman" as qualification

[OllyBJolly]

Another victory to the Sheros at For Women Scotland

https://www.heraldscotland.com/news/24186774.msps-say-public-board-quota-rules-definition-woman-change/?ref=ebln&nid=1220&nid=1220&block=article_block_a&u=054edb3529532184da5e0680af05453d&date=150324

The original legislation defined a “woman” to include all transgender women, regardless of whether they had a gender recognition certificate (GRC).

The amended version, if approved by the wider Scottish Parliament, will remove the definition of a women which includes “a person who has the protected characteristic of gender reassignment… if, and only if, the person is living as a woman and is proposing to undergo or has undergone a process (or part of the process) for the purpose of becoming female”.

It came after feminist campaigners For Women Scotland challenged the definition in the Court of Session, which ruled the wording unlawful.

The power to use a SI to modify the Equality Act is contained in s23 of the GRA 2004.

@BetsyM00
But why would that provision apply to a different Act?

And also, why would altering the definition of Sex, rather than "transsexual", be covered by that provision?

If it had been the other (right way) round ie for all purposes women are biological females then they wouldn't have had to write the single sex exemptions.

Of course they would. Forgetting about trans and GRCs for a moment, we still need single-sex exceptions to make provision for women-only services free from men.

And think about what is meant by single-SEX space. What is trying to be achieved here? Is it single-LEGAL-sex or single-BIOLOGICAL-sex? Because if it's legal sex then the single-sex space must, by definition, must include GRC holders. So Sch 3, Para 28 cannot be used to exclude them. Para 28 becomes pointless.

If you are trying to use the exceptions to create a single-biological-sex space, then you've just agreed sex in the Equality Act takes its ordinary biological definition.

But why would that provision apply to a different Act?
I suspect because Parliament was unsure how the provisions and effects of the GRA were going to pan out, so wrote in the power to remedy any problems.

And also, why would altering the definition of Sex, rather than "transsexual", be covered by that provision?
Clarifying sex as biological would modify the operation of the Act in relation to those who have an acquired gender.

On a subjective level I suspect that after the HoC meeting to discuss changing the wording of the EA - not forgetting that the petition saying the wording shouldn't be changed had more signatories - it was left that the relevant departments would have more discussions.

I think these Private Members Bills from Tory women is an indication, not that they have stalled, but have disappeared off the agenda.

The other reason being that the meeting clearly showed that in terms of MPs supporting sex based rights, despite a few brave speakers, they weren't exactly in the majority.

So even if despite everything else on their plate, the tories thought they should make parliamentary time, the public reaction to them using time on something the vast majority of the country thinks is a fringe issue when so much is going wrong in terms of the economy, the NHS, etc.. the Tories wouldn't want the additional negativity of putting time into this.

Just to add that sometimes in these discussion I wish we could have pinned posts so we dont have to have the same discussion every few weeks with someone raising the same red herrings.

Maybe the OP of the thread started about trying to understand the (our) consitution is something we should all participate in.

Of course they would. Forgetting about trans and GRCs for a moment, we still need single-sex exceptions to make provision for women-only services free from men.

You misunderstand. If as would have been logical references to sex in the EA were meant to be about biological reality you would need to create an exception. Single sex would always be biological as had been accepted by 99.99999999999999999% of the population.

Then had they followed the logical and factual meaning of sex, then they could have created exceptions for the few occassion when TW who had a GRC would be a "legal woman" eg marriage and passports.

It really doesn't matter how you read the EA, the mere fact that the SSE were created shows that the intent of the bill was in favour of TWAW.

the mere fact that the SSE were created shows that the intent of the bill was in favour of TWAW.
No, single-sex exceptions were created to allow separate women-only spaces where men are not permitted. Even if trans people didn't exist we'd still need them.

Then had they followed the logical and factual meaning of sex, then they could have created exceptions for the few occassion when TW who had a GRC would be a "legal woman" eg marriage and passports.
Why would we need exceptions for GRC holders? The Equality Act works perfectly logically on the basis of the ordinary biological meaning of sex. What you are advocating for is for transmen who have a GRC to be treated as 'legal men' which would deny those, like Freddy McConnell, the right to pregnancy and maternity protection in the Equality Act. Even the Inner House conceded on this point.

Actually, just coming back to this because I think the word "exceptions" is causing a problem here. It is not an exception to upholding single-sex provisions, as in, it's only for women except for the man who has a GRC. But rather allowing for single-sex provision to exist at all is an exception to the general principles of non-discrimination that underpin the Equality Act. Excluding men from a service would be discriminatory except in the cases where it is proportionate and legitimate.

Why would we need exceptions for GRC holders? The Equality Act works perfectly logically on the basis of the ordinary biological meaning of sex. What you are advocating for is for transmen who have a GRC to be treated as 'legal men' which would deny those, like Freddy McConnell, the right to pregnancy and maternity protection in the Equality Act. Even the Inner House conceded on this point.

Please indicate where I have said this? !!!!!!!!!!!!!!!!!!!!!!!

And also please read, which you can easily google, why the SSE were created.

Then you will realise that it was BECAUSE the EA meant that "for all purposes" TWAW.

If the EA hadn't done that then they would never have had to create SSE.

I do not understand how you dont understand this.

It is because the act has meant that "for all purposes" TWAW that a court case was bought to try and say this would distort "gender" monitoring.

And Lady Haldane said tough, that it was the act says - for all purposes - that is why the SSE were written.

Please indicate where I have said this? !!!!!!!!!!!!!!!!!!!!!!!
Uhm, might it have been where you said "exceptions for the few occassion when TW who had a GRC"

In fact you said "they could have created exceptions for the few occassion when TW who had a GRC would be a "legal woman" eg marriage and passports.". The corollary also applies. If a TW with a GRC is a legal woman, then a TM with a GRC is a legal man. And if this is the case then they are excluded from protections in the Equality Act which are only available for "pregnant women". This was all argued in FWS's case before Haldane, and then the Inner House.

Then you will realise that it was BECAUSE the EA meant that "for all purposes" TWAW.
You are mixing the Acts up. It's the GRA 2004 that mentions "for all purposes" at s 9(1); the EA has nothing to say about it at all. You also haven't read the legal argument put forward by FWS's KC - the documentation is all on their website and the CrowdJustice. From the CJ: "By overlooking the plain meaning of the biological terms of “sex” and “woman” in the Equality Act to give precedence to the terms of an earlier statute the court reverses the constitutional principles of interpretation. The later Act should always take precedence in the event of a dispute or conflict in their terms."

What Lady Haldane said is not set in stone, that's kinda the whole point of an appeal. In fact the higher court already overruled her on the TW with a GRC and the pregnancy rights issue when they conceded the biological point. Para 60 of CSIH 37 judgment if you'd like to double check.

Uhm, might it have been where you said "exceptions for the few occassion when TW who had a GRC"

Oh dear, you obviously skipped over that fact that I had said that had the act been written the other way round, ie tha biological women had been given priority over TW, then they might have had to create exceptions for trans women.

I am not sure why you cant just see that the main point is that because of how the act is written the trans reality is given priority over biological fact.

And Lady Haldane's "ruling" is merely confirming that whether you or I like it not, because that is how the act is written, "for all purposes", baring the exceptioins, TWAW. This doesn't mean she agrees with it. She was just saying this is how the act has to be interpreted because of how it was written, ie that act has created this situation.

And to repeat, that is why many thought it better to have a petition to Parliament to get the act clarified rather than hope on the off chance that a Judge will say, because this Act is so badly written it needs to be clarified. Or even more unlikely that she would say, well the act as written implies this, but they couldn't possibly have meant that, so I am going to give a new interpretation to what was written.

Judges dont change the law. Parliament does that.

I dont know if Judges can say at the end of a trial, actually the problem is the act is so badly framed it needs to be re-written and am instructing Parliament to do it!

You are correct that courts don't change the law, but they do have a duty to interpret it in a way that a coherent stable and workable outcome is achieved, according to Lord Hope who also said this will be achieved if the legislation is construed according to the ordinary meaning of the words used.

And it is a basic legal principle that the most recent legislation takes precedent. The GRA is not gospel or set in stone. Like all other laws it is subject to natural repeal when a new law is written that makes it obsolete, either in part or as a whole. Why do you think we don't have the Gaols Act 1823, that provided for female wardens in female prisons, anymore? It was never officially repealed but was made obsolete by an industrial tribunal decision in 1995.

And the same is true here. The Equality Act is interpreted with the ordinary meanings of the words used - and then and only then, we look at the terms of the GRA to see how they fit in. Any conflict and the terms of the GRA fall by the wayside.

Lady Haldane didn't do this and we ended up with an unworkable EA that denied some women (with GRCs) pregnancy rights. The appeal court tried to fix this by recognising the biological nature of 'pregnant women' but maintaining 'legal sex' elsewhere. This makes the category of sexual orientation incoherent and single-sex provision unworkable. And put two definitions of sex in the Equality Act, despite Lady Dorrian recognising s212: "In this Act...women means a female of any age" requires one coherent stable definition throughout the Act.

Michael Foran has recently written a good piece covering the legal arguments:
https://papers.ssrn.com/sol3/papers.cfm?abstractid=4740870

or Aidan O'Neill KC's speaking notes at the last Inner House hearing are comprehensive, although I daresay will need updated post judgment.
https://forwomen.scot/02/10/2023/note-of-argument/

you obviously skipped over that fact that I had said that had the act been written the other way round, ie tha biological women had been given priority over TW, then they might have had to create exceptions for trans women.

I did not skip over this, I asked you why. Why do we need to create allowances for TW with GRC to be women in the Equality Act? The Act is coherent stable and workable with the ordinary biological meaning of sex. Otherwise you get the problems I've just detailed. You didn't answer this, just 'oh deared' at me.

Is it correct and also relevant that the Sex Discrimination Act 1975 provisions were incorporated into the EA? Because that predates the GRA and the concept of legal sex, so the provisions in it must be about bio sex.

The introduction to the Equality Act states it is not simply a consolidation, but to: "reform and harmonise equality law and restate the greater part of the enactments relating to discrimination and harassment related to certain personal characteristics".

Importantly though, from Michael Foran's article linked above, he says the following about it:
"in consolidating the Sex Discrimination Act into the Equality Act, the drafters did in fact make an important textual amendment which must have meaning, especially given the presumption that drafters do not use language carelessly. In the Sex Discrimination Act 1975, woman is defined as including a female of any age; in the Equality Act 2010, woman is defined as meaning a female of any age. The difference here is important and must have legal effect. The 1975 definition is open-ended; the reference to inclusion does not foreclose the possibility that there may be other meanings of “woman” which do not correspond with “a female of any age”. By 2010, that definition is changed, and we must presume that this was not done randomly or arbitrarily. Its consequence is to narrow the definition from the 1975 Act by confining the meaning of woman to mean a female of any age. We must also presume that the drafters did this in full knowledge of the Gender Recognition Act 2004, including knowledge of s.9(3) and the limitation of the “for all purposes” rule by reference to “provision made” by other enactments.

Thus, while it is true that “the word ‘biological’ does not appear in the definition”, this does not mean that there was nothing in the way of textual change from the 1975 Act to the 2010 Act that could support the idea that provision has been made in this enactment to limit the applicability of the “for all purposes” clause here. On this point, the question is how explicit the “provision made” must be for it to engage s.9(3). On a narrow reading, there would need to be some reference to biology or possession of a GRC. Yet this would render the choice to change the definitions of woman and man between the two Acts meaningless. As Haldane rightly notes, the presumption is that statutory language is not chosen carelessly or without full knowledge of the background legislative context."

I'm going to need to read that a couple of times to get my head around it, BetsyM00!
**
Fascinating that the Sex Discrimination Act used the word "including". The change shows that the drafters were well aware of the danger of not tightly drawing the boundaries around the meaning of the word "woman".

I will try to get my brain around the Foran article. But it sounds like it might be very hopeful for the SC appeal.

@BetsyM00
Just finishing the Michael Foran article - it's very long and some of the legal language is off-putting, but he's a very clear writer.
It seems to me that some of the positions that the Inner House and Lady Haldane took were very odd and also inconsistent.
And they all seem to have been mesmerised by section 9(1) into treating the GRA as if it was some sort of Master Law.

The section on Human Rights was especially illuminating and gives additional cause for hope of a favourable judgement.

This sentence sums up the problem with trans activism for me:
Rather than finding ways to accommodate the distinct needs and rights of an anomalous group of individuals within an existing framework, the presumption now seems to be that the framework itself must be radically reconfigured.

Thanks for the link.

Snowypeaks I read that to mean “woman” is to include a female of any age and so include girls. Since the conventional meaning of woman is an adult it would otherwise exclude girls. IANAL though.

But you could be right and something different was foreseen.

Did you mean to quote me? I don't recall posting about that.

*reply to me

Oh, I see what you are getting at.
No, I was musing about legal sex v bio sex and was surprised that legislation predating the GRA used "including" a female of any age which is very open-ended. The context is clearer from the comments exchange with BetsyM00.

Remember the civil service are the power behind the MPs.
How captured are they?

Watch yes minister.