For Women Scotland in Supreme Court - thread 3

[nauticant]

The proceedings in the Supreme Court took place on 26 and 27 November 2024.

Previous threads discussing the proceedings:

https://www.mumsnet.com/talk/womensrights/5182666-for-women-scotland-heading-for-supreme-court

https://www.mumsnet.com/talk/womensrights/5218934-for-women-scotland-in-supreme-court-thread-2

The video of the proceedings over 2 days in 4 sessions can be found here:

https://www.supremecourt.uk/cases/uksc-2024-0042.html

I have said this before but what is the fixation with t-shirts from some quarters? Is there a cabal of disgruntled t-shirt sellers that are doing an underground protest or something?

I know this question isn’t strictly relevant but if FWS win, how will it be practically possible to operate single-sex spaces or enforce the genuine occupational requirement when men with a GRC have female written on their BC? Couldn’t they just deny they even have a GRC and pretend they were born female? I can’t wrap my head around how it will ever be possible to manage these situations when men are able to doctor their identity documents. And yes I know many think that no man ever passes but not everyone is able to tell with 100% accuracy and it’s certainly not practical to think services can be managed in this way. The only option would be a trust based system and I can’t see that working since many trans people have openly stated they would ignore laws that allow for lawful discrimination against them.

It's so unbelievably pathetic it's hard to put into words. Groups like FWS and people like Maya and Helen Joyce have never been anything but totally supportive of KJK and yet she continues to be snide about them with her "God why didn't you just repeal the GRA?" shtick.

A cynical person might think that successful attempts to practically nullify the effects of GI in UK law might not be too great for KJK's business model.

I decided to have a look at what KJK is saying on this. There might be other stuff that I missed, but this is what I found:

https://x.com/ThePosieParker/status/1862109022544961932?t=O7H7p5mSYLun12qI8aXmGg&s=19

Apologies to anyone not on X, it's a video clip.

From what I understand here, she's pointing out that the law already exists to exclude males who identify as women from single sex sports, spaces and services but it's not being used. She says that unfortunately there is always a woman involved in the decision-making process to not use it. She also wants the GRA repealed.

Seems fair enough.

There is a comment below her video which says: "Correct. The law meant Mridul Wadhwa didn't have to be hired to run ERCC - but he was." That's not the whole quote. The rest of it talks about how some people have used the loose wording of the law to interpret it to suit their own agenda (paraphrased as it wouldn't meet MN guidelines). Regardless of the word choice, it's a fair point too.

I don't know who was involved in the hiring process but from what I've understood, Sandy Brindley and Nicola Sturgeon appear to have been influential and supportive in it.

Yes, she has her own way of doing things. No, that won't be to everyone's liking. It's a bit like the Suffragists and the Suffragettes. If I was fighting for women's rights at that time, I'm pretty sure I'd have landed (and stayed) on Team Suffragist. But I'm glad we also had the Suffragettes.

She's charismatic, has enough ego to lead and knows what she's aiming for. I don't agree with everything she says (particularly that video about trans people being lazy - that one did tip into "anti-trans" IMO) but from what I can see, she's still doing a great job of getting women together to share their concerns and experiences.

Please can you share the link where KJK says she thinks that the case is pointless @SisterFrancis ?

In terms of the occupational requirement, surely as part of a recruitment process it is not onerous to require someone to provide a birth certificate demonstrating that they have the legal sex for which the job is reserved ?
(not that legal sex, as opposed to actual sex should be relevant here, but given that it will be relevant if the judgement says that you are male-from-the-point-of-the-equality-act without one and then bureaucratically transubstantiated into female once you have paid your fiver)
Similarly for sporting events and all sorts of competitions. At higher levels, there could be a requiremtn to produce the birth certificate as a matter of routine, and in 'hobby'-style events it could be a clear feature of the Ts&Cs that you will be excpeted to provide a certificate in certain circumstances - say if there was a dispute about your eligibility.
It really isn't complicated and I feel that it is important to stress that, because the alleged complexity of proving (legal) sex has so often been used to defeat the whole idea of single-sex spaces. For example, I am still fuming about the time I entered a Myslexia writing competition which was billed as women only, but of course was for 'anyone who identified as a woman'. I'm sure that part of the reason orgs like Myslexia failed so miserably is that they did not understand how, legally, they could at least restrict the presence of men to those with certificates. Now, that possibility has become legally clearer, so it is important to stress that it is also practically easy if you just get your Ts&Cs in place.

As regards toilets and so forth, the ease or difficulty with which you can keep men out is a red herring. The important line to hold here is not policing access but providing clarity to service providers that they are permitted and in some cases obligated to develop policies of excluding men without certificates. Some men will slip through unnoticed, as they always have done, but the service provider can still take actions to reduce such instances and penalise them when they are discovered (eg by terminating someone's gym membership)

On KJK. In any movement there are gradualists and absolutists. I've lived in Scotland most of my life. In the independence movement there were those who fiercely opposed devolution instead arguing only full independence was the goal. Eventually they lost the argument. Scotland got devolution and came close to independence. It certainly now has the powers to hold a referendum which could lead to independence in the future.

Sex Matters are gradualists and KJK keeps the focus on the absolutist position. I'm a gradualist myself - I think they tend to win in the long run. But we do need people who keep banging the drum for the ultimate end game.

KJK is right. Allowing single sex spaces doesn't mean we will get them. FWS are right that we have to first win the legal right to have single sex spaces. Its vital we win the battle that sex meets biological sex, but I think we all know that. should we win that, we have not yet won the war.

Perfectly put.

In terms of the occupational requirement, surely as part of a recruitment process it is not onerous to require someone to provide a birth certificate demonstrating that they have the legal sex for which the job is reserved ?&

I think @Signalbox 's point was that sex on bc does not necessarily denote biological sex, if men are able to change the sex on their bc. So there is not way to ensure single sex spaces, given this.

Apologies, @Signalbox , yes, I misread your post. I do, though, see how things might be a little bit better in these respects than they have been. Still, though, the existence of orgs like Edinburgh Rape Crisis centre - determined to subvert the absolute core values of single sex provision - makes your anxieties very germane indeed.

I had a bit of discussion about the ability to uphold exclusively single-sex spaces with my Labour MP. I asked how I could legally exclude a man from my women-only space when all his documentation said that he was female. She was a bit confused and asked if I wanted to know how I would tell that he is actually male. I said, no, I know he's male, I can tell by looking at him but legally how do I exclude him from my women only space when, if I ask for proof of ID, it is going to show female?

If it is the case that you can have an exclusively single-sex space then the question needs to be answered.

We also need to think about the implications for women of requiring a birth certificate to access single-sex services. How many women will be excluded because they haven't got the right ID, It's difficult enough for some people without it being one and only one document that is acceptable.

I guess, should we win the legal battle that sex means biological sex, then we then have the firm legal foundation to say, well allowing men to change legal sex and bc, prevents us from being able to enforce our legal right to single sex spaces, so you need to look at your GRA legislation.

Linked to the key point at the centre of this case - the ridiculous notion that someone's sex (and birth certificate) can be changed by a GRC - I found a handy guide to sexual orientation on X while I was looking for the KJK stuff. See screenshot.

According to the Scottish government, each of us only has the sexual orientation that we do because of our partner's GRC status. Not their sex. Our and their sex is irrelevant. Obviously the trans widows have been shouting this from the rooftops for a while now (as have many others) but unfortunately the full nonsense seems to have escaped lots of people.

The flowchart below sets it out nice and clearly. Currently, neither my husband or I has a GRC, so as far as the law is concerned, we're both straight. If one of us gets one, we're both gay. But if the other then does too, we're both straight again.

It's bonkers enough that this would affect our relationship in this way (what if I don't agree that I'm gay, just because my husband has acquired a GRC?) but it's utterly insane that it impacts how the certificate owner can then apparently change other people's sexual orientation en masse before any relationship has started e.g. according to the Scottish government, a TW with a GRC would legally be a woman on a lesbian dating app, thus forcing all the women (the ones without the GRCs) to consider a future potential heterosexual relationship with this person by framing it as homosexuality, because they are legally lesbian.

I appreciate that lots of people have been saying all of this for years on MN but the flowchart below really does help play back what utter nonsense the GRA is.

This has always been a problem. And continues to be one. You're quite right.

A man produces a birth certificate to say he's born female , when he's quite evidently a bloke, what are you supposed to do?

There's no way past it.

This is why the entire thing is such a mess. Nobody should ever have been able to change their bloody birth certificate! It's a travesty. And makes you seriously wonder about the mentality of anyone who went along with it.

Repealing the GRA, would of course undo all this ridiculous nonsense, very quickly. Admitting that it's a crap law, based on male fantasy would be the death knell to gender ideology.

But there is more than one way to skin a cat.

And while KJK keeps the notion that the GRA should go front and centre, people like Maya and Helen can undermine all the legality of the current situation.

It's a win/win.

Ps I'm still advocating a two step solution:

1. define sex as biological sex in the EA and make sure organisations understand that sex and gender identity are not the same thing
2. repeal the GRA or (if that's too complex in the current laws that it links to) create new legislation which ringfences its purpose as a certificate of belief not fact, meaning it can't be used to change actual facts like sex recorded at birth.

In terms of making the GRA toothless - yes, that would be a great idea, and I'm sure there would be a lot of satisfaction at that. And it would alleviate the problem of men in women's spaces (if their access is dependent on it).

But equally, I'm sure there are still quite a few women who would like it repealed, regardless.

For all the reasons. It's sexist, delusional claptrap. And an acknowledgement that it should never have been enacted in the first place would be good.

If stage 1 is achieved and for the purposes of the EA sex equals biology then I would support tackling the GRA.

I would argue that the original purpose of the GRA has been superseded by the legal recognition of same sex marriage. There is no bar to getting married irrespective of the sex (and gender identity) of the parties.

Therefore, it is difficult to see what purpose the GRA serves apart from the right to falsify your birth certificate. There are real concerns about people being able to falsify legal records to reflect a belief about themselves.

Quite a reasonable summary of the court case on the bbc website yesterday. I was struck by this part of the case, as reported in the article:

The Equality Act provides for sports events being segregated as a “gender-affected activity” where the “physical strength, stamina or physique of the average persons of one sex would put them at a disadvantage compared to average persons of the other sex” ...
The point made by Mr O’Neill [was] ... that it was clear that MPs were talking about biological sex when they drafted the 2010 Act.

That felt quite decisive for me. It seems to demonstrate that the equality act defines sex as biological sex at least some of the time ... which would surely prevent the judges from concluding that Parliament intended to redefine it in terms of legal sex?

https://www.bbc.co.uk/news/articles/clyvdd671e6o

I haven't read the full thread beyond this point so this may have been addressed, but...

IF FWS win, a male with a GRC will not be female for the purposes of the EA2010.

I would have thought that the new birth certificate will have the date of issue on it. So that's how you could tell it was altered.

If the male person insisted, the onus would be on them to prove they were female, surely? Because actually being female is the only possible ground for a claim. There would be no grounds for a claim for unlawful discrimination on the basis of GR because they are male and being excluded for the same reason as all the other male people, regardless of whether they have the PC of GR or not. Only an actual female who claims to be a man, with or without a GRC, would be able to bring a claim for GR discrimination.

Yes I think it was more generally in loos etc. not officially, for occupation reasons.

Discussion on X that repealing the GRA would put the UK in breach of the ECHR.

The consequences of this are unclear, but some claim that this is the reason the UK are highly unlikely to repeal the GRA.

IANAL, and I may have got this wrong, but I thought it applies anywhere.

If FWS's interpretation is correct, and GRCs don't turn male people into women, then if you turn a male person away from the women's spa, or the women's book club, or turf them out of the women's toilets, it doesn't matter whether they have a GRC or not, because a GRC doesn't make them female.

Whether they have the PC of GR or Sex (male) or both, you can turn them away if excluding all male people is a proportionate action to a achieve a legitimate aim. Privacy, dignity and safety are absolute human rights and always a legitimate aim.

Again, this might be my ignorance, but there doesn't seem to be a separate test in the EA for the exclusion of GRC holders compared to other MCW, or male people generally. There is one PC - Gender Reassignment - that covers all MCW, with or without a GRC. I don't think there is a two-tier system for the lawfulness of exclusion from a single sex space or service. It's just that it has been argued that it would be unreasonable to object to the presence of the mythical MCW who totally passes, maybe?

The "unachievably high bar/case by case" arguments, I think, were from the EHRC guidance from about 2018, when a TA was in charge, and of course the (bonkers) Inner House judgement more recently. I'm really not sure those approaches are actually in the legislation.

I would love the lawyers on the thread to explain. As I said above, I could have got all of this wrong. But I feel sure that that was how it was intended to work. The comparator for a MCW is other male people, GRC notwithstanding - if not, you get the absurd consequences we all know about.

The advantage of the FWS argument is that we don't have to repeal the GRA to get our rights back - it would be irrelevant to the EA - but it also reveals why the GRA should be repealed.

As well as the absurd and harmful consequences of accepting s9(1) as an untrammelled provision, the arguments of both FWS and SM revealed the general redundancy of the Gender Recognition Act itself.

But equally, I'm sure there are still quite a few women who would like it repealed, regardless.
For all the reasons. It's sexist, delusional claptrap. And an acknowledgement that it should never have been enacted in the first place would be good.

I completely understand (and agree with) the point about the sexism. However, as long as it's toothless in law, I can live with the sexist nonsense within it, much as I do with the sexism in the bible and quran. A toothless GRA would have a similar status in society, where there is a variety of people who interpret it different ways but none of it is ratified in the law of the land e.g. some people think that living according to God's/Allah's way means traditional, rigid roles according to sex are important (looking at you, Matt Walsh). Some religious people think that's bollocks. Likewise, for some people with a GRC, wearing clothes that are stereotypically associated with the other sex is important. But others will simply see the "I'm a lady" comedy sketches being taken seriously.
Sexism will never be stamped out of society. This at least gives us a fighting chance of stopping the law from validating it in the ludicrous way that it does now. I'm happy for TW to buy their £5 lady tickets (and TM their £5 man tickets) as long as they don't force the rest of us to say we accept that their gender (belief) as a substitute for their sex (fact).

I would argue that the original purpose of the GRA has been superseded by the legal recognition of same sex marriage. There is no bar to getting married irrespective of the sex (and gender identity) of the parties.

Agreed.

Therefore, it is difficult to see what purpose the GRA serves apart from the right to falsify your birth certificate. There are real concerns about people being able to falsify legal records to reflect a belief about themselves.

Yep. This needs to end. It would be possible to treat it in a similar way to religion from a "dignity" perspective e.g. if I worked in a hospital and my clinical recommendation was to do a blood transfusion, yet the person's religion said this was forbidden (e.g. Jehovah's witness), that doesn't change my recommendation. It also doesn't stop me giving blood transfusions to anyone else. Yet the GRA would force me to consider my patient to be the opposite sex, if sex in the EA doesn't mean biological sex. If I'm a gynecologist, I can't specialise in women's reproductive health without also including the women with, testicles, penises and/or neo-vaginas. My clinical recommendations are compromised by me being forced to accept someone's belief as fact e.g. as a gynecologist I'm likely to recommend that a TW with pain or symptoms down below sees a different doctor, given my specialism doesn't cover their care. Or does their magic certificate mean that am I going to be forced to widen my specialism to accommodate their belief about themselves, plus support them going on the women's ward?

Common sense suggests that in the scenario above, I should have access to the patient's actual sex on their records, they can go to a general ward (or perhaps their will be trans health specialists if there is enough demand) and staff can choose to use the patient's preferred pronouns etc or not. How people accommodate others' beliefs will vary. Personally in this scenario I would just avoid pronouns altogether when talking about the patient (unless using the term "the patient") and avoid mentioning the patient's sex in front of them. Much as I would avoid talking about the benefits of blood transfusions to a Jehovah's witness if it was already clear that this was a no go area. There are plenty of different ways to provide care without causing the patient to feel "disrespected". However, demanding that people accommodate your belief as fact and then calling it disrespectful when/if they don't is nonsense. No wonder so many people now use sex-based pronouns in such situations.

A man produces a birth certificate to say he's born female , when he's quite evidently a bloke, what are you supposed to do?

Ask for proof of actual sex. Isn't the burden of proof on him to prove that he's actually female, if that's your requirement?

A birth certificate is obviously not proof of sex, as long as it can be modified by GRC, so it's no use him presenting it as such.