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

@UtopiaPlanitia PS the barrister reminded me of someone, couldn’t think who, so had to watch another of his videos.

He sounds like Johnathan Pie!!!

I'm glad you found the video interesting.

The GRA was proposed with a very particular profile of person in mind (as was the gender reassignment protection included in EA 2010) but the legislation was written in such a way as to also allow people without that particular profile to use the law to legally change sex.

It's as though the legislators couldn't conceive that bad actors could make use of the law in socially negative ways, which surprises me because legislators and those drafting legislation are supposed to think ahead and anticipate negative consequences of legislation. Of course the lobby groups encouraging the Labour and Conservative govts to pass these two Acts were very careful not to bring up the fact that there were people out there who would use the law but not fit the profile the legislators had in mind.

I think that legislation of the "BeKind" type or the 'Owning the Libs" type is written for its PR value rather than its contribution to the betterment of society, and I think legislators need to treat making law seriously and not as an exercise in personal or party branding.

What if FWS lose?

Then we're no worse off than we are at the moment. The Court of Session decision applies in Scotland (it's only persuasive in England & Wales) but the EHRC are fully on board with it - they've been upholding the concept of legal sex throughout the UK for years.

And at least we will have absolute clarity and a solid argument to take to the Govt and agitate for them to amend the Equality Act. They'll no longer be able to sit on the fence.

But if FWS win...well, it's a game changer.

Alex Massie in the Times:
https://www.thetimes.com/article/c00e037c-a2fb-4136-8d5e-0b8facb60511?shareToken=8a4488147e70d14efcdf7d9ff7efee51

It may be that FWS loose because the judges follow the logic of the horrendously bad GRA law to the bitter, logic end.

It is not their job to rescind the wrongly worded law, but only to say what the law says.

The GRA must be the greatest insult to the idea of law as representing truth and justice that there has ever been.

It may be that FWS loose because the judges follow the logic of the horrendously bad GRA law to the bitter, logic end.

Yes, I agree.

I think it is unlikely because the EA post dates the GRA.

Dr Michael Foran has produced a brilliant if complex examination of the legal muddle here

This is interesting, but so muddled. Just like the Law. Law based on citizens' thoughts about themselves can never be good law. It should be based on verifiable, testable facts; even then there will be disputes and mistakes, but at least we know what is required to overturn a decision. If the law is based on what each person says about themselves, it is based on something that may be a deliberate falsehood, or may be changeable from moment to moment. The facts of a case in law should be, as far as possible, repeatably verifiable. If the determination that someone is a woman or a man is based on certificates or on self-identification rather than scientific evidence, then the law is built on sand.

It is only possible for anyone to relate to someone else based on how they perceive the person. My wife cannot possibly relate to me based on how I see myself, it has to be based on her perception of me. If I try to tell her how she has to see me, that is coercion. It's lovely if she respects my opinions, but if she sees my opinions as idiotic, she cannot respect them just because I say they are sensible.

Again, it must surely be bad law for it to demand that someone relates to someone else based on the latter's self perception. And a certificate is of limited value in shaping our perception of the certificate holder. If I know someone who has a PhD, but in conversation they appear to know little about their specialist subject, I am unlikely to respect them based on the PhD; I would feel that something doesn't add up. Have they suffered a brain injury; is the PhD from a fraudulent "university"; is the person lying about having a PhD at all? If the law states that I must treat them as a PhD holder, with the respect demanded by such an exalted qualification, it must be open to me to question the truth of it.

@ChazsBrilliantAttitude I appreciate signposting to this article, i especially like the argument regarding vertical and horizontal effects. I will have to read it more carefully, but it seems to me that we will get the judgement that we all want.

Yes, I've been saying that for months.

A court cant change a law.

But I suppose if a court were to say this law is so badly written, contradictory, maybe this would be a prompt to get some changes made.

But dont forget in theory this re-examination should already by happening post the HoC discussion of the 2 petitions. Kemi Badenoch was progressing this, but then Sunak went and called a snap election.

But as the petitions were to the HoC not any one Party, Parliament should be continuing this work.

Still not sure who gave the advice that a court could change the law.

And just hope those who are getting paid to argue the case in court, aren't the ones who gave the legal advice. If they are there is a conflict of interest.

@IwantToRetire
It’s not about the court changing the law, it’s more about the court assessing the interaction between the GRA and the later EA. In very simple terms, a subsequent Act of Parliament can override / disapply elements of an earlier Act. This is one of the core appeal points. If Parliament passes a later Act which appears to override certain provisions of an earlier Act then arguably that is what Parliament intended to happen. If to continue to apply the provisions of the earlier Act would render parts of the later Act as absurd or ineffective in places then the later Act should take precedence.

I think this case will turn on complex legal analysis of whether or not all elements of the GRA are compatible with the effective operation of the protections in the EA. The Michael Foran article I linked above is a really good exposition of the issues the court will wrestle with.

One interesting feature is that the definition of sex as biological is even tighter in the EA than it was in the Sex Discrimination Act.

One interesting feature is that the definition of sex as biological is even tighter in the EA than it was in the Sex Discrimination Act.

How is that as the EA does not mention biology?
( I know it mentions “female” and “male” which were once biological terms per se but that does not seem to count now.)

s212(1) says “woman means a female of any age”

The SDA says “includes a female…”

The issue is that if you try to argue that female has anything other than the usual biological meaning some of the provisions of the EA don’t work. A trans man with a GRC loses pregnancy protection but a trans woman with a GRC gains them. Which of these two people biologically needs pregnancy protections?

whether or not all elements of the GRA are compatible with the effective operation of the protections in the EA

Everyone knows that the only protected characteristic in the EA that is not valued for itself is sex.

The Labour government in writing the clause that allowed the concept of "legal women" in addition to biological sex women was intentional.

It is social engineering.

And they argue that the the SSE mitigate this.

But in simple equal, equal rights they dont. No other protected characteristic group has to argue that "where proportionate" they can claim rights based on their protected characteristic.

So if the point of the court case is to prove that the interaction of the GRA on the EA is sex discrimination, I still dont see why Parliament (particularly with the authors of the act in power) taking any notice.

How is that as the EA does not mention biology?
( I know it mentions “female” and “male” which were once biological terms per se but that does not seem to count now.)

That's because at the time it was written, there was no widespread assertion, not just by activists but the media, that it could mean anything but that.

That is why there were 2 petitions about clarifying the word sex in the EA to mean biological by GC campaigners and to leave it open to interpretation by TRAs.

As I said up thread, using the HoC petition system is a democratic process by which the public can try and achieve change. But as we can see (or at least to date) if a new Government refuses to continue the work of the democratic process, if nullifies this supposedly democratic process for voters.

The Times article, link posted earlier, does not as is the case with most newspapers, incorrectly describes how the SSE (should) work.

The fact that so many people dont even understand it would (IMO) indicate that the EA needs to be re-written.

Although my preference would be to repeal the GRA.

Another question I keep forgetting to ask in terms of legalities is this.

If the Court case is against Scottish Ministers and it is won, does that mean that only in Scotland would the new ruling apply?

If you remember at the time of the SNP trying to change the basis of GI to self identity a lot was made of the fact that as this is UK wide law you cant have one country that is part of the UK change a law for their part of the Union.

The SC is being asked to interpret the meaning of the EA so their decision will be binding wherever the Act applies.

The case title is FWS vs Scottish Ministers.

So how can the court say well this is our decision, and Ministers in other parts of the UK should take note.

If this was true then the UK Government, and possibily others, would ask to be represented as they did the case about Scotland's proposed self identity law changes.

Or maybe they are and I missed it.

I am sure there was a list of who had been allowed to participate, and although (I think) the EHRC is, they again aren't law makers. They help apply the law as created by Parliament.

The UK Govt chose not to intervene in the case.

Because our laws are determined by legal precedent - previous decisions - and the higher the court, the more binding that decision is. You can't appeal higher than the Supreme Court within this jurisdiction. Their word is, literally, law.

The Scottish ministers have created law that, potentially, conflicts with the EA.The point the SC are being asked to determine is fairly narrow: can a GRC alter the meaning of sex, to the extent that a male person can claim to identical rights as female if they possess a GRC, or not?

JR doesn't, in theory, decide on what the law should be. It rules on what the law is, already, and which of two competing sides here are wrong around their interpretation of the statute that created that law.

That point being decided by the SC will mean it's decided for everyone, across the UK. All future law will be determined by it, unless and until Parliament acts to the contrary.

The judgement will bind lower courts from that point on.

Was that when it was Tory, or when it was Labour?

Do you know.

If it was the Tories, then I can see why they might not intervene if they think it will come down on the side of sex always meaning biology.

But wonder at Labour letting this slip through.

Or maybe this is a devious way of resolving what is for them a political quagmire. ie having someone else take the decision about the definition of sex.

On what grounds can a government decision be overturned by the courts?

There are three main grounds of judicial review: illegality, procedural unfairness, and irrationality.

A decision can be overturned on the ground of illegality if the decision-maker did not have the legal power to make that decision, for instance because Parliament gave them less discretion than they thought.
A decision can be overturned on the ground of procedural unfairness if the process leading up to the decision was improper. This might, for instance, be because a decision-maker who is supposed to be impartial was biased. Or it might be because a decision-maker who is supposed to give someone the chance to make representations before deciding on their case failed to do so.

A decision can be overturned on the ground of irrationality if it is so unreasonable that no reasonable person, acting reasonably, could have made it. This is a very high bar to get over, and it is rare for the courts to grant judicial review on this basis.

In addition, a decision can be overturned if a public authority has acted in a way which is incompatible with human rights that are given effect by the Human Rights Act 1998. There is one exception to this, though: if the public authority is merely doing what parliament told it to do, then it is not acting unlawfully even if it does act incompatibly with one of those rights.

A judge cannot quash or declare unlawful a government decision merely on the basis that the judge would have made a different decision, or that the decision was wrong.

Can the courts overturn legislation in judicial review cases?

The courts cannot overturn or quash primary legislation passed by parliament. This is because, in the UK constitution, parliament is sovereign.

The courts can overturn secondary legislation, made by ministers, on the normal grounds of judicial review.

https://www.instituteforgovernment.org.uk/explainer/judicial-review

Because our laws are determined by legal precedent - previous decisions - and the higher the court, the more binding that decision is. You can't appeal higher than the Supreme Court within this jurisdiction. Their word is, literally, law.

The Scottish ministers have created law that, potentially, conflicts with the EA.The point the SC are being asked to determine is fairly narrow: can a GRC alter the meaning of sex, to the extent that a male person can claim to identical rights as female if they possess a GRC, or not?

JR doesn't, in theory, decide on what the law should be. It rules on what the law is, already, and which of two competing sides here are wrong around their interpretation of the statute that created that law.

That point being decided by the SC will mean it's decided for everyone, across the UK. All future law will be determined by it, unless and until Parliament acts to the contrary.

The judgement will bind lower courts from that point on.

Great explanation @perfectstorm - thank you.

Or maybe this is a devious way of resolving what is for them a political quagmire. ie having someone else take the decision about the definition of sex.

I think this. Their position is that the Act is perfectly clear as it is (which is an absurd position given that people have been squabbling over its meaning and how it interacts with the GRA for the best part of a decade).

If they were to intervene they would need to take a side because “the law is perfectly clear as it is” wouldn’t wash. They would need to be very specific about the things that until this point they’ve remained spectacularly vague about.