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

@WorthyTraybake please say if you get anywhere with the "height of lampposts" thing. I tried googling it but didn't get anywhere.

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.

It absolutely astonishes me that the people who drafted this thought it was an acceptable phrasing to use in an act of parliament. Even more astonishing that it must have been read by lawyers, civil servants, MPs and peers before being passed into law, and that nobody - apparently - said "This is so vague as to be absolutely meaningless and will cause no end of aggravation down the line."

What were these people thinking of?

Further overnight pondering: if SG’s argument that sex and gender should be read as interchangeable and it’s really important that someone acquires the same rights and status as persons with that natal sex, why were Stonewall (briefly) campaigning to remove the protected characteristic of sex from the EA2010? Had they worked through the implications of the current sex fudge and foreseen that the “pregnant man” scenario could hole the GRA provisions below the water line? For once I am thankful to trans men for carrying on regardless and doing that thing that only natal females can. Like the cake & eat it hereditary lords, they highlight where SG’s tortured logic breaks down.

Yes! This blows my mind everytime I read it

Would someone mind posting the 'barnstorming' end of the session for me?

I know it's been posted, with the relevant timestamp, but I'm damned if I can find it.

Especially when you show how broad it can be:

(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 [ie non-physiological] attributes of sex.

It's the last 20 (and a bit) minutes of the afternoon session on 27 November.

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

Thank you!

Not to mention what are "non-physiological aspects" of sex? There aren't any.

I was surprised that it wasn't made clear as a bell in response to the " for all purposes" part of the submissions.

And what on earth is "proposing to undergo"? It is as unfalsifiable as the alleged inner feeling of being a woman. I can't think of any operational definition of "proposing to undergo" which means anything more than "says that they might undergo".

Sure. But the wording of the statute implies there are. Law abhors a vacuum like this so it allows mischief-makers to fill the void. For example, with stereotypical characteristics.

I've spent years thinking about this and for me the inevitable conclusion is it's all about what's in a man's head, with nothing in material reality having any relevance, and is utterly unverifiable.

Yes. Was that why the judge raised the make-up and hair query on day one?

This case has the feel, for me, of a fairy tale, where everyone in the kingdom (from the palace, outwards), starts waking up from a long dream or spell- and says "What!? What is this thing here? How did this happen?"

(Or maybe that's just in my hopeful imagination)

Yep and Section 9 ladies is heading towards my personal lexicon 👍

Gender identity by another name.

I don't know how this works in reality but the submission given in the Supreme Court will be a matter of public record which is accessible for anyone. I'd imagine that an MSP with a mind to push back on any more obfuscation from ministers & MSP's or any lobby groups giving evidence, could refer to it - whether it holds any binding property on those situations to be useful, I've no idea. If they lose, but continue as though men with certificates should be included in policies/initiatives aimed at women, then it's at least useful to know where the thinking comes from & using the judgement to challenge it.

One of the areas I think will be impacted in terms of approach is the Misogyny bill that's been worked on by Helena Kennedy KC. My understanding is she's clear that any misogyny bill should include men claiming to be women. If the judgement goes against Scotgov, I'd like to think it would aid the arguments (and MSP understanding) of why that's inappropriate & the Scotgov failed arguments can have the sunlight from parliamentary committee & (hopefully 🤞) the right outcome on that.

There's a separate debate I think on whether a separate aggravated offence rooted in misogyny is the right way to tackle male violence etc. but on basic principles, I think recognition of the prevalence & significance of male violence against women & trying to somehow target that without disappearing down a rabbit hole on whether actions are inclusive enough to include men, would be a good thing.

Same here - haven't found anything at all. Very odd.

Does the acceptance by Scotgov (and all parties in the SC case) that transwomen without certificates are men create any obstacle to drafting a misogyny bill that includes them as possible targets of misogyny?

And if you need to have a GRC to qualify as a possible target of misogyny, how would that work?

Does this mean ...the sex written on your driving license? I think that's what I've gleaned from the court case, but as ever find the whole thing utterly baffling.

I would imagine this could work in the same way as the protected characteristics so that perception can matter too - like if you think I am, say, gay I'm protected from discrimination on that basis (even if I'm not).
But perhaps they can write new legislation with a differently defined target group - women and trans women without a GRC? And then people can self ID as victims of misogyny?

It could do. But documentation can only be an "aspect" of certificated sex. Bio sex is entirely physiological. The two concepts - legal sex and bio sex - cannot sit alongside each other in legislation. They're like two magnets with the same polarity - you cannot force them together.

Yes, what you say in your first para seems one possibility. But in that case, it wouldn't be protecting transwomen as such. It would simply be the case that if you directed woman-hate at anyone (including any man that you thought was female - say, a man online that you thought was a female poster).you would be guilty of the aggravated offence (or however they term it).
That seems pretty harmless to me (perhaps?). The harm would be if the legislation made an explicit inclusion of transwomen as being members of the category 'woman' and therefore a target for hatred, not on the grounds of misperception but on the grounds of being a woman.

Well quite. Whether someone thinks you are a woman/not a woman, the GRC doesn't matter.
Another worry with misogyny legislation is that, in order to include men, it will define "Sex", rather than "woman", to mean those pesky "non-physiological aspects of sex" and/or gender identity. So misogyny might include not accepting someone's gi. I don't know if that would be lawful, but if this didn't count as an equality measure, maybe it would be. And another effect of such a redefinition could be that a short-haired, trouser-wearing, sex realist woman is not protected, except by perception discrimination - but a MCW would be!

I can't see the point of a bloody misogyny bill in any case. The systemic, egregious failures of the legal system to take crimes against women seriously aren't going to be magicked away by a law that says that crimes are particularly serious if they are motivated by hatred of women.
Will it improve the successful prosecution rate for rape, stalking, harrassment, threatening behaviour, coercive control?