For Women Scotland written submission (UK Supreme Court)

[Justme56]

https://forwomen.scot/22/10/2024/uk-supreme-court/

https://forwomen.scot/wp-content/uploads/2024/10/FWS-Supreme-Court-Briefing.pdf

These have made this available ahead of the court case in November.

It depends what the judgement says, but if they determine that the word sex in the Act has its ordinary meaning they will have to go on to say what that meaning is.

The lesbian interveners have now published their submission:
https://scottishlesbians.org.uk/resources

Direct to the pdf:
https://img1.wsimg.com/blobby/go/571aa49f-c57c-4592-8025-97f9a242321e/downloads/1995bd31-8761-4b77-9975-e68291233a26/Supreme%20Court%20intervention%20submission.pdf?ver=1729673302017

That's the point. The meaning is already contained within the act and it's: Man = male of any age and Woman = female of any age. The document argues that the terms "legal sex", "biological sex" and various other terms "should be avoided". (See paras 25 and 26). From my reading (and IANAL so I might be wrong) FWS don't want the term "biological sex" to be used because you are then introducing the concepts of "bio sex" and "legal sex" into law.

Thanks @BetsyM00 just read it.

i particularly like the paragraph explaining what lesbian sexual attraction is not.

” … nor is she sexually attracted to a certificate”

nails it really

Excellent work by Scottish Lesbians. Thanks for posting the link Betsy.

(I've done some more work in the garden this morning. It's a good day for it.)

“The Lesbian Interveners” sounds like a most excellent band. I would buy their albums 😀

@AnotherAngryAcademic 😂😂😂

'The defining characteristic of a lesbian is that she is not sexually attracted to male bodies, including penises, testicles, male body mass and shape. Nor is she sexually attracted to certificates.'

'A male can never be a lesbian as a matter of fact whether he is in possession of
a GRC recording his acquired sex as female or not. This is because he will never be female. It cannot seriously be disputed that humans are a sexually
dimorphic species. This fact is reflected in the differences in sex characteristics
as between women and men as was identified in Corbett v Corbett 40 and later in Bellinger v Bellinger41 .

These characteristics are innate and sex, therefore, is immutable. As it was put in Bellinger v Bellinger,

'The distinction between male and female exists throughout the
animal world. It corresponds to the different roles played in the
reproductive process. A male produces sperm which fertilise the
female's eggs. In this country, as elsewhere, classification of a
person as male or female has long conferred a legal status. It
confers a legal status, in that legal as well as practical
consequences follow from the recognition of a person as male or
female. The legal consequences affect many areas of life, from
marriage and family law to gender-specific crime and
competitive sport. It is not surprising, therefore, that society
through its laws decides what objective biological criteria
should be applied when categorising a person as male or female.
Individuals cannot choose for themselves whether they wish to
be known or treated as male or female. Self-definition is not
acceptable. That would make nonsense of the underlying
biological basis of the distinction.'

'Changing sex, then, is impossible and what will always be an imperfect attempt at a facsimile of a woman’s body will not make a male a female. This means that a male who is sexually attracted to women will always be heterosexual; even with a GRC, he can never be a lesbian'

Authentic lesbianism would again become the love that cannot speak its name
Indeed.
That gave me a tear in my eye for sure.

Same, a proper lump in throat moment.

I'm still reading the doc so forgive me if this is addressed later but in the indepth discussion about why the word 'sex' should refer to sex rather than gender identity, there are paragraphs such as this:

So against that sociological, biological and historical background concerning the law’s treatment of women, it is submitted that, for the court below to be correct in its interpretation of the EA 2010 there would have to be an express, unequivocal and inescapable provision in the EA 2010 itself admitting of no doubt or any possible interpretation other than that Parliament intended that the legal protections afforded under the EA 2010 to women should exclude some women (those women who have obtained a GRC in the “male gender” under the GRA 2004) and include some men (again those who have obtained a GRC in the “female gender” under the GRA 2004).

[Para 38 in the FWS doc]

I'm finding the emphasis on the GRC a bit frustrating because service providers (and all the other equivalents) aren't allowed to ask if somebody has a GRC, are they? And doesn't the law cover those who intend to get a GRC one day, etc? So it feels much wider than just including men with with GRCs, we've already seen that in practise it's any man that says they're a woman.

GRCs are the nub of this case - it's already been decided in the previous hearing in the Inner House, and accepted by all parties, that "Those without a GRC remain of the sex assigned [sic] to them at birth and therefore would have no prima facie right to access services provided for members of the opposite sex." That service providers are ignoring the law is an issue for either the EHRC to deal with or for other specific cases of legal action to be raised.

No-one's arguing gender identity because that's not a term in law.

And strangely, no-one is disputing what sex as a biological term is either. (Save perhaps Amnesty, who knows what they'll come up with.) The argument is whether "woman", as well as a biological term should also include men who have obtained the legal fiction of a GRC saying they are female.

Next one! Sex Matters have published their submission.

sex-matters.org/posts/updates/sex-matters-intervention-to-the-supreme-court/

Thank you @BetsyM00

Thanks to the OP as well. I hadn't donated to this one because I was a bit nervous about the case as a whole, that it might not go in our favour. But reading the document has reassured me and, really, I simply don't see how we can lose. So I have donated off the back of this update today.

I often wonder if the original judge in the Forstater case is GC and wanted to set a precedent at an EAT. Hopefully that sort of thing is what's happening here!

I'm actually really nervous about this. I'm deliberately not reading a lot about it as I'm sadly convinced that they will lose the case. And we will all be worse off. The tickle v giggle case in Australia solidified my belief that unfortunately the patriarchy will always win. Women are fucked.

If this case is only about correctly interpreting the law then I think Haldane had it. The EA takes two entirely contradictory positions - it's an oxymoron of a law.

@HerGorgeousMajestyArabellaScott Yes Ben goes into this oxymoron - framed as a legal absurdity in his submissions in detail.

I particularly like that Ben underlines the fact that it is impossible to discern between those with or without a GRC.

This is exactly the discussion i had with trustees when running a women’s refuge service. We concluded that we could not admit anyone who was a biological male but could only rely on our eye sight.

and off the record we could always come up with some other reason for declining admittance.

I once said under another name that i felt the GRA would eventually wither on the vine, Since the EQA covers transsexuals protections adequately.

Bannedontherun · Today 20:56

I particularly like that Ben underlines the fact that it is impossible to discern between those with or without a GRC.

Isn't that rather the whole point of it for them? To create an access all areas, all circumstances, no exceptions precedent.

Hiya @SinnerBoy well it does have that effect apparently, but as Ben points out that is the nonsense of the GRA.

“They” i assume means TRAs. It can be argued that the legislators could not predict where this was going to go.

i did not know the GRA existed until it all started in around 2010.

I like this bit (the FWS doc para 89 (2)):

Again, this problem only arises because the court below does not recognise the
protected characteristic of “sex” in the EA 2010 as a biological category and description of reality, rather than some kind of assigned and variable Foucauldian social construct or application of a legal fiction.

Ooh, and this is good for showing how ridiculous it is (para 91):

Because the court below found that the acquisition of a GRC entailed a “sex-change” for the purposes of the EA 2010 then these provisions (para. 3 Sch. 23 EA 2010), on the reading of the court below, have to be amended to read as follows:

“(5) Communal accommodation is residential accommodation which includes dormitories or other shared sleeping accommodation which for reasons of privacy should be used only by persons of the same sex who do not hold a GRC sharing with persons of the opposite sex who do hold a GRC.

(6) Communal accommodation may include—
(a) sleeping accommodation shared between men without a GRC and women with a GRC;
(b) sleeping accommodation shared between women without a GRC and men with a GRC;
(c) residential accommodation all or part of which should, because of the nature of the sanitary facilities serving the accommodation, be used only by persons of the same sex (who do not hold a GRC) sharing with persons of the opposite sex who do hold a GRC.

This is what happens when the words 'men' and 'women' have no meaning.

I've finally gotten to the end. It seems eminently straightforard to me but I am not used to reading legal documents like these. It was heavy going in places but I persevered and I'm glad I did. It's very interesting to see how the case is constructed. It helps having truth and reality on our side.

One lingering concern is that the court might acknowledge that the appellant is right but that our current Gov will go and make all the amendments that this document says would be needed (e.g. the wording would need to change on laws such as the 'Victims of Sexual Offences...Forensic Medical Services 2021' and the 'Human Fertilisation and Embryology Act 1990', etc). I would like to think they'd have to debate it which would bring sunlight and I know that in reality many of us are used to words like 'women' no longer being meaningful (I work in a particularly captured sector) but, even so, the stakes are very high.

@Bannedontherun - you said: I particularly like that Ben underlines the fact that it is impossible to discern between those with or without a GRC. Are you referring to a different case (perhaps the Forstater one)? I couldn't see that in the FWS document but I am not sure Ben was involved in it. By the time I got to the end of the document, I decided that they must have left that out because that's an issue (for GC people) with the GRA rather than the EA.

Justices are:
Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lady Rose, Lady Simle