For Women Scotland heading for Supreme Court

[Imnobody4]

You can read the reasons etc in For Women Scotlands crowdfunder. They are launching this review
UK Supreme Court: The Definition of Sex in the Equality Act

The Inner House of the Court of Session Judgment

We believe the Equality Act was drafted on the basis of the ordinary, common law understanding of the biological differences between the two sexes. The protected characteristic of “sex” in the Equality Act is defined as a reference to a man or a woman, where man means “a male of any age” and woman means “a female of any age”. We think it is quite clear that these are distinct and separate groups and that “woman” is not a mixed-sex category.

However, in our recent judicial review, For Women Scotland v The Scottish Ministers [2023] CSIH 37, the Inner House took the opposite view and decided there is a relationship between the Gender Recognition Act 2004 (GRA) and Equality Act 2010 and held that the meaning of sex in the Equality Act incorporated the GRA framework.

The court decision stated that a person with a Gender Recognition Certificate (GRC) in their acquired gender has the protected characteristic of gender reassignment. Separately, they also possess the protected characteristic of sex according to the terms of their GRC and have a presumptive right to access the single-sex services of their acquired gender.

The Supreme Court will consider a request brought by For Women Scotland (FWS) who argue there are “strong grounds” for its challenge, which will almost certainly overturn contentious Scottish government legislation if successful.Campaigners for women’s “sex-based” rights reacted with delight to the news, including Magi Gibson, the poet, who posted on X/Twitter, that it was “game on” on in the “fight for the protection of women’s rights within the UK legal system”.Dennis Noel Kavanagh, a lawyer and the director of Gay Men’s Network, said: “Getting permission to go to the Supreme Court is really hard and very rare but FWS have it. The question ‘what is a woman’ in law will now be heard by our highest court. Massive news.”

www.thetimes.com/article/088ae0ce-fba9-4b97-8331-01a32195bef5?shareToken=3ada340957f5d2af2e20b01a7c15da3b

Happy to be corrected but basically natal men can’t claim sex discrimination on the basis of pregnancy and maternity.

So a natal female with a GRC (a man in legal terms) can’t claim sex discrimination on the grounds of pregnancy and maternity even when they are pregnant.

By clarifying sex as natal female or natal male a pregnant transman with a GRC is protected.

@ArabellaScott yes the Judith Butler invite would be a killer.

The fact is that Aidan unintentionally has shone a light on how absurd the whole concept of gender as separate from sex is.

A question that's occurred to me before - if the Supreme Court rules that 'sex' for all legal purposes is modified by a GRC does that mean that proving abortion to a transman with a GRC becomes illegal? The act specifies 'pregnant woman' multiple times.

Re-returning to a proper signed in experience of Mumsnet just because I want to thank you all. I almost didn't believe my ears walking the dog and there was only a poo bin nearby to ask 'did she really ask that?'

Did TT miss the comment about makeup and hair by the judge? I just looked and couldn't find it. Think it should have been in tweet at 12.30 but it just says about how someone dresses?

No criticism of TT! I can't believe they kept up with all of it!

I have to say I generally prefer the mumsnet version of court coverage. Also no shade to TT - they provide a different kind of service, the kind you need to trawl.

I'm glad they're asking the stupid questions.
It's stupidly worded law. It's really important they draw line where lines can be drawn. I don't believe a judge thought it possible that lipstick was a physiological sex marker, I think she wanted to establish clearly in the room that everyone agreed it was not. And the fact that the law as written does use sex/gender interchangeably, at great cost to clarity.

This is the ultimate sunlight on the core of the issues. It's not going to fix the issues because the law itself is a self-contradictory mess. Can a court ask government to fix broken law?

Do we know when Ben's doing his bit?

I know the other side will be very competent and put forward good arguments but honestly as @chilling19 says “sex is sex” is the only way to clarify the EA2010.

If they can do that, whilst I know not everyone will agree, we can have a new PC for gender which would include definitions, that it doesn’t trump sex, includes non-binary and leads to 3rd spaces etc.

This made me laugh!

@fanOfBen ohhh dear are you love struck ❤

This was one of the points the EHRC raised. That if a GRC changes sex, then transmen would not be covered for pregnancy/maternity discrimination.

@Bannedontherun purely a fan of the elegance of his legal arguments, you understand ;-)

Yes.

And I think that point landed. Because it cleared up what the comparators would be - a natal man in a claim for gr discrimination and a natal woman for sex discrimination - and because another section says that there's no claim for sex discrimination when a woman is treated differently to a man because of pregnancy and maternity provisions, the female with a GRC would not be protected. The woman judge thought that there would be a claim.

I had the impression that before this started, the judges, all of them, were inclined to agree with the EHRC submission - that sex = bio sex+ certificated sex although Parliament needed to tidy up some areas. But the sheer amount of idiocy which has been cited, culminating in the "pregnant man" example, is beginning to shift them, I think.

@Harassedevictee and @ArabellaScott thank you for explaining.

@thirdfiddle that makes sense, going for complete clarity.

Labour mp:

lol 😆🤪

Unless I have missed it Equal Pay is also a mess, as who is a comparator for a natal female with a GRC?

Is Ben C allowed to speak? I felt sure I read somewhere on X that he was only permitted to make written submissions on behalf of his client.

Thanks to everybody summarising this so cogently.

No, I can't find the more hilarious sarcastic comments, sadly.

Hopefully those will be repeated and immortalised elsewhere tomorrow

If they can do that, whilst I know not everyone will agree, we can have a new PC for gender which would include definitions, that it doesn’t trump sex, includes non-binary and leads to 3rd spaces etc.

I don't want to start a fight, but we really don't need a PC of gender, because it is impossible to define. Belief in GII could be protected under the PC of belief, assuming it passed the Grainger test for being WORIADS.

DM headline tomorrow:

"Supreme court tells women who wear makeup they require a GRC."

Women, if it's a claim for sex discrimination.
Men, if it's a claim for discrimination on the grounds of GR.

shame!

Ah shame! Really enjoyed that bit!