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

From the article:

The Scottish government, which will outline its case on Wednesday, has already argued in written submissions that it is unlawful for women’s-only spaces and associations to exclude trans women with GRCs and that they should be considered female

If it is true that that is what they have written, then they need to get another lawyer. Hard to believe they dont know about the SSE.

But on the other hand would explain why not just the Scottish Government but those they fund, listen to etc., say this is the truth.

If they are going to argue with, would love to hear what the judges say in response to that.

Catiette, from comments by WeeBisom and others it seems that a video recording of the proceedings will only be uploaded here https://www.supremecourt.uk/decided-cases/index.html once the case has been decided.

That means that if you want to watch the proceedings you either watch them live or wait some months until there's a decision.

There was another thread about this where it was pointed out that the single-sex exceptions would still have been necessary in order to lawfully discriminate against men.

Thanks so much. I somehow missed that - whizzed through with lots of links open in an attempt to get to grips with it all!

If anyone is interested in a TRA perspective, here is a "live skeet thread" from Blue Sky

bsky.app/profile/reactiveashley.bsky.social/post/3lbtrpfcfu224

So impartial much objectiveness

Nah, you can usually watch it the day after.

Oh, that would be handy. I'll have a look later in the week.

Ah, yes, under the Current Cases tab:

https://www.supremecourt.uk/current-cases/index.html

Ooh, fingers crossed. On the links above? Just seen that's a yes. Excellent.

Working all day, so no chance to watch live...

There was another thread about this where it was pointed out that the single-sex exceptions would still have been necessary in order to lawfully discriminate against men.

Yes! FFS the single sex exceptions in the EA 2010 are not in themselves based on trans issues. They are simply to allow single sex facilities, spaces and services to exist. I'm not sure why this misinformation keeps being posted.

There are "exceptions to gender reassignment discrimination" around single sex needs to allow among other things single sex spaces to be completely male (or female) free, which are based on trans issues.

That's not my understanding and I think you have got the wrong end of the stick. but I'm typing on my phone with one finger so I'm not going into it now.

The example I used on the other thread where this notion was challenged is that if there were no single sex exceptions, any man would be able to legally bully himself into a woman only breastfeeding group just because he felt like it.

This is where Ben really drove home a point that the GRA could not be constitutional law in nature, nor was it intended to be (the deeming effect i think)

He argued that the phrase “…for all purposes” was confined to the four corners of the GRA ACT. So that “for all purposes” does not apply outside the GRA ACT

In other words the “for all purposes” did not have effect in any other legislation unless expressly stated.

The EQA makes no such express statement.

So as you say mesmerised you are correct Haldane was legally incorrect in that the GRA has some constitutional effect.

A very strong argument as legislation by itself can never be part of our (unwritten) constitutional conventions.since any legislation can be overruled or revoked by our parliament.

an example of a constitutional convention is the proroging of parliament which was deemed unlawful.

so i think this is an argument that then leads in to separating the EQA away from the GRA, once free from that, this strengthens the argument of the intentions of parliament to have a separate protected characteristic of biological sex.

Aiden argued this in a different way i think, i got lost with this and had to go back to submissions.

Aidan was showing how EU regulations had constitutional effect, but we have now left. What that meant was for the first time in UK legal history the judges had to overturn the will of parliament in favour of the EU directive (Factortame i do believe is the case)

The GRC was forced upon the UK parliament because judges ruled that UK law on gender was incompatible.

So he is saying as followed by Ben that the GRA has diminished effect since leaving the EU.

Hope that makes sense

This has really bugged me, the way Haldane and the Inner House seemed to be mesmerised by s9(1) of the GRA and treated it as it was some master law.

The TRAs on Reddit and Bluesky see it the same way. They don't seem to understand that there is any legal point of contention.

The argument made by FWS and Sex Matters is more or less that Parliament can never have intended the protected characteristic of sex to apply to opposite sex trans people because it makes a nonsense of it, creating categories in law that aren't coherent and which don't reflect the need the category was created for.

I have a day at the tit cancer clinic tomorrow, I think listening to unmitigated gender bollocks dressed up in legalese will be just the tonic

He argued that the phrase “…for all purposes” was confined to the four corners of the GRA ACT. So that “for all purposes” does not apply outside the GRA ACT

In other words the “for all purposes” did not have effect in any other legislation unless expressly stated.

I think this is the key point on which this will all turn, in my perception.

@Ereshkigalangcleg Yes indeed showing that the GRA has no effect on the EQU as i hopefully correctly surmised is part and parcel of the same argument.

If that's judged to be correct, I think we will win. If not, I don't think we will.

But IANAL so don't pay any attention to my musings!

And bugger me, (as a student of law) I did vote out of the EU solely on the basis that the EU was generating constitutional constraints on our legal system, that interfered with the supremacy of our parliament and something which we the voter had no control over.

I did not at the time consider GC views, immigration trade or any other reason.

Gosh i was so fucking right.

@Ereshkigalangcleg A bug bare of mine we are all the subjects of the rule of law, and therefore should involve ourselves in opining and debate. It should not be a secret arena for the experts that we do not involve ourselves with.

The secret barrister books are worth a read.

https://www.theguardian.com/society/2024/nov/26/supreme-court-for-women-scotland-gender-representation-appeal-case

A reasonably balanced article.