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

This video is even more sinister - I couldn’t believe my eyes when I first watched it (note the YouTube comment from StillTish!)

Annie Wallace’s simmering rage at the audacity of the tervern is really quite something.

Tish’s commentary on Annie Wallace can be read here: gendercriticalwoman.blog/category/annie-wallace/

Sorry gatecrashing into this thread, not having had time to read final posts on last.

But saw this headline (sorry if already posted) but only in the Guardian would they make the focus of a court report which has 2 sides of a case, to only reflect one! And no guesses which side that would be ...

Transgender people have right to be recognised in legally acquired gender, court hears
https://www.theguardian.com/society/2024/nov/27/transgender-people-have-right-to-be-recognised-in-legally-acquired-gender-court-hears

And am glad there is a thread focusing on the impact on lesbians.

Thank you everyone for commenting as it helps me understand it all better

That is unfair to the Guardian. The report covers yesterday's hearing, which was essentially about one side of the case. The other side was dealt with the previous day and reported by the Guardian at Supreme court urged to recognise ‘facts of biological reality’ in sex definition case | Scotland | The Guardian

That Graun headline...
The case was about SEX and what that means. Not gender.

If they think they are one and the same thing then they should come out and say it - someone's gender is what their sex is.

Edit - sorry I guess it makes more sense if they're only reporting day 2.

And to be even more fair, counsel for Scotgov made it very clear yesterday she'd be using the terms "sex" and "gender" interchangeably.

Ah, so there's no such thing as having one sex and a different gender then, because there is no difference. Job done! Let's all clock off early.

Technically, I don't think I would object to having my chromosomes tested to obtain a certificate to legally be a woman... hear me out.

If they made a chromosome test the standard and then issued certificates it would mean that no males could ever be legally classed as a woman. Any individual who had anything other than the standard XX/XY could have further investigation to determine their sex so it would probably be best for this test to be done at birth.

Which isn't really any different to the current system we have of observing sex markers in babies and issuing a birth certificate. So wouldn't it really just make sense to check chromosomes at birth and the sex on your birth certificate is your sex for life?

Just placemarking, but may as well take the opportunity to re post tribunal tweets artists sketch of Ben.

That's also a brilliant sketch.

Placemarking 😳

This video is even more sinister - I couldn’t believe my eyes when I first watched it (note the YouTube comment from StillTish!)

Yes, hilariously Wallace merges Maya F and Allison Bailey into one person and then claims the papers were wrong in saying that Maya won her case because she lost her case against Stonewall

The overwhelming good that has come from this case is to show clearly just what an absolute fucking mess the GRA and EqA are and the unmistakable negative impact both have had on women's rights.

Ereshkigalangcleg wrote on the last thread:
Schools can't use the EA single sex exceptions and let also in boys (or girls if single sex male) because minors can't have a GRC, is my reading of it.

No. It might be more complex than that. The trouble with the EA is it actually says (and this is the direct quote):
7 Gender reassignment
(1)A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex

So this means that you have the protection of gender reassignment even if you haven't got a GRC.

This muddies the water somewhat by effectively potentially creating a state where you have gender reassignment protection but may not have the legal status of sex. This potentially raises the actual need for a third way even if we do get a ruling that backs up the Haldane ruling! It potentially makes 'not quite woman but separate from man' and vice versa in legal status.

I think the wording here is potentially a right mess and something that will have to be thrown back to politicians because it creates a gray area even if a GRC legally makes someone the opposite sex.

To clarify: legally some transwomen might remain legally a man but have gained gender reassignment protection. Or some girls who identify as trans may remain female legally but still have gained gender reassignment protection.

If you have transwomen who aren't legally women but have gained gender reassignment protection, which toilet do they piss in? And given that some people in this situation have no desire to fully trans situation and instead almost have an open ended non transition or decide to only be the opposite sex on certain days of the week that also begs some questions.

Honestly it's all a bloody car crash.

The more I think about it, the more I think the SC can't settle all of this and whilst they may settle a huge amount, every way you move on this, it throws up another issue that will then have to be resolved.

Is that even legally literate?!

Ruth Crawford KC said she was just doing what was done in the GRA, for example garbage like this:

if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman

If you have transwomen who aren't legally women but have gained gender reassignment protection, which toilet do they piss in?

I thought the protection meant that they wouldn't be discriminated against other men - so the protection it would give would be if they tried to go into a male toilet but other men refused to let them in they could say discrimination. But as men without GR protection cannot come into women's toilets, the ones with GR protection also cannot.

More to the point, when this refers to natal women, women cannot discriminate against natal women who have the gender reassignment protection, ie it would be illegal to refuse to let transmen without certificate into female spaces, even if they 'pass' as men.

I think?

It potentially makes 'not quite woman but separate from man' and vice versa in legal status.

This is more or less what most schools are doing - providing a third space for toileting and changing (ie access to a single user accessible toilet to use as a changing room for PE etc).

If boys-who-identify-as-girls were allowed into girls schools then girls-who-identify-as-boys would surely have to be expelled? Expelling female students who claim a male gender identity must qualify as discrimination on the basis of gender reassignment (being treated less well than other female students).

In reality we don’t have loads of boys applying for state schools for girls because you have to show birth certificate/passport and NHS registration to apply for a school place (any school place) applications for single sex schools are limited to children registered with the LA/NHS as being that sex and the number of under 5s or under 11s whose parents have changed their child’s passport and medical record before the age of 11 must be tiny (and possibly limited to families who have immigrated from places with very liberal approaches to changing a child’s record, eg California).

The above is specific to applications being made through the on-time automated system used for ‘national offers day’ so perhaps getting a child into the opposite sexes single sex school might be possible via in year transfer? If it came out that a natal boy had taken a place at one of the extremely oversubscribed girls schools (or vice versa) near me there would deffo be a legal challenge - don’t get in the way of an aspiring grammar school parent without expecting to get a (metaphorical) elbow to the face!

IIRC the gender reassignment protection was originally aimed at over 18s only but Press for Change had it lowered via secret lobbying and guidance updates?

when the judge asked 'but surely the criteria for being issued a GRC can't be just 'wanting one'!?' Even if the criteria of having gender dysphoria is necessary a person has that just because they say they have. Because there is no way to prove or disprove it.

Yes exactly. But this hadn't occurred to, or been pointed out to them before now!

The very fact she had to admit it and explicitly state it proves they're not the same thing and they're trying to conflate the two.

The thing is it’s not just the EA2010 that uses woman. So just changing the EA2010 is insufficient. For example the Abortion Act 1967 uses pregnant woman, the Ministerial and other Maternity Allowances Act 2021 uses mother and expectant mother.

Plus we don’t want the term pregnant people, we want pregnant woman and for it to mean a natal female. It’s interesting that FWS and Sex Matters are the ones who want sex to mean natal sex so that pregnant transmen with a GRC have maternity and pregnancy protections. It’s the Scottish GMT, Amnesty and EHRC who are arguing against. The reason being, for them it’s not about Transwomen so it doesn’t matter.

Having only just now watched yesterday morning's session, one thing that stands out is how Crawford throws transwomen without GRCs under the bus. That's because she needs to jettison them to win the case.

When you think about it, that's not surprising because the GRA was enacted for transwomen who would be getting, or would have got, GRCs. The idea that there'd be this spectrum of blokey to effeminate transwomen not bothering to obtain GRCs because they'd have their identity celebrated in society at large would never have crossed the minds of those who gifted us this law.

However, that radically changed landscape isn't for the Supreme Court to mend. In other words, it's back to Parliament to mend a law that's badly out of step with how society has changed over the past two decades.

As far as I can evidence the Gender Reassignment protection only became applicable to school pupils in 2014, for the first 4 years it only applied to staff.

The changes came about via ‘technical guidance’ but there is very little about the realities of how schools should adapt to the change (the gov document links to TRA org GIRES and the some random 2012 guide to gender in schools from Cornwall, which seems to have been memory holed. I guess a TRA must’ve been pretty influential in Cornwall during this period?)

https://assets.publishing.service.gov.uk/media/5a7e3237ed915d74e33f0ac9/Equality_Act_Advice_Final.pdf

Also found a GIRES info sheet from 2017 so adding it here for posterity.

(anyone else else a bit weirded out that the 2012 Cornwall stuff and 2014 changes to EQ10 that made GR applicable to kids maps with the massive rise in referrals to GIDS? Almost as if the government are complicit in spreading the social contagion 😬)

If boys-who-identify-as-girls were allowed into girls schools then girls-who-identify-as-boys would surely have to be expelled? Expelling female students who claim a male gender identity must qualify as discrimination on the basis of gender reassignment (being treated less well than other female students).

Isn’t this what Girlguiding is already doing?