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

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.

It also showcases the naivety/delusion/bad faith/whatever of those doing the carrying on. It’s certainly the thing that has stopped some people I know in their tracks with “What? Why?”.

Well, two questions really. The onus always seems to be on those arguing for single-sex spaces to demonstrate that exclusion is a proportionate means of achieving a legitimate aim. Why isn't the onus of proof ever on the claim that the protected characteristic of gender reassignment requires the inclusion (in particular situations) of people with that characteristic? I don't mean people with a GRC, I mean the wider group of people who fall under that characteristic?

This is standard equality law and applies in a wide range of situations, not just to single-sex spaces.

If A claims that B has discriminated against them, all they have to show is that B has disadvantaged them due to a protected characteristic. B then has three main defences - that their actions weren't discrimination at all, that they were discrimination but one of the exemptions in equality law applies, or that the discrimination was a proportionate means of achieving a legitimate aim. So, for example, if a hospital finds that a surgeon is losing their sight, they can stop them performing operations as patient safety is a legitimate aim. If a business that buys most of its supplies from India is making redundancies in its purchasing team, they might legitimately be able to prioritise team members who speak Hindi even if that discriminates against people who are not of Indian heritage.

The law is the way it is partly because it is difficult to prove a negative (i.e. for the claimant to prove that the respondent did not have a legitimate aim, or that the means were not proportionate, although claimants do argue that), and because the vast majority of cases are brought by employees against employers, or individuals against public bodies. Putting the burden of proof on the claimant would make it much harder for them to win cases. Reversing it for gender discrimination only would be problematic and would make it much easier for employers to discriminate against people on grounds of gender (if people think gender and sex are the same thing, that would be a serious setback for women's rights). There is already a complete exemption for small associations (i.e. those with fewer than 25 members).

It might be possible for parliament to give some kind of exemption to single sex spaces that wouldn't have unwanted side-effects but, in my view, that is much easier for the courts to achieve. Parliament can tie itself in knots trying to come up with wording that gives only the exemption they want to give and still find there are situations they haven't considered that fall the wrong side of whatever law they come up with. The courts, on the other hand, can apply the existing law based on the facts of each case and come up with binding precedents, which is the way the law normally works.

So here is my second question: Given that the protected characteristic is essentially defined in relation to a specified process (not to a state of being such as 'gender identity'), what are the 'legitimate aims' that might reasonably be considered to be associated with the protected characteristic?

That is up to the courts. In my view, it would be a legitimate aim to say that a rape victim should have the right to be examined only by someone who is biologically female, for example. I also believe it is a legitimate aim for a group for lesbians to want to restrict their membership to individuals who are biologically female. In my view, this also applies to groups catering for female rape victims - yes, there are male victims of rape, but I think there is justification for saying this should be a truly single sex space. However, these are my personal views. I don't know of any court decisions in this area.

If I remember correctly, in Tickle v Giggle in Australia, one thing that swung things for Tickle was because he's a woman in a man's body, the discrimination he suffered was because of the kind of woman he was, and it was a kind of discrimination that women in women's bodies wouldn't be subject to.

We do have to bear in mind that - like an employment tribunal - the oral submissions are only a very small part of the total submissions. The vast majority of the case is set out only in the written submissions.

Although looking at that, it's so mad that I won't be surprised if I misunderstood.

That's the problem. It's all mad, so you can't use logic to tell when you've got the wrong end of the stick.

Retired academic lawyer here. It was just an observation in relation to a pp comment. I consider myself reminded. Many thanks.

Thanks, @prh47bridge

Putting the burden of proof on the claimant would make it much harder for them to win cases.
Unless I have misunderstood, this suggests that your answer to my first question (about where the onus of proof lies) implies that the claimant will be the person with the protected characteristic of gender reassignment, who is objecting to a single-sex space .
But it is equally possible that the claimant will be a woman objecting (on the grounds of sex discrimination) to the failure to provide single-sex spaces where these are necessary to avoid disadvantaging her. In those cases, surely, the defendant in the case (for example, the service provider who has defaulted to mixed sex provision) has the burden of proving that the inclusion of people with the characteristic of gender reassignment was a proportionate means of achieving a legitimate aim.
And yet we never hear these sorts of arguments (ie the arguments establishing the grounds for inclusion rather than exclusion of people with the gender reassignment characteristic) being rehearsed (or at least they aren't endlessly scrutinised and problematised in the obsessive way that the justifications for single-sex spaces are.
We seem to regard inclusion as the default and exclusion as the variation that has to be interrogated and justified. But, depending on who the claimant is (ie a gender-reassignment person arguing for inclusion in a woman's space or a women arguing her need for single-sex provision, the burden of proof will shift, so neither inclusion nor exclusion should be the default.

Clearly if the person already has a GRC, then legally speaking, there is a default to including them in single-sex spaces. I suspect that this, narrow, justification for the default-to-inclusion has muddied the waters, and created a 'mood' in which the onus of justification is always placed on a policy that excludes people with the gender reassignment characteristic.

Apologies if I have simply misunderstood - which is highly possible

I agree completely. Makes me glad I'm not a supreme court judge trying to make sense of what Parliament were thinking - although the basic problem seems to be that they weren't thinking very carefully.

But the single-sex space is not a default that has had groups added. The default is always to start with everyone. You have to justify each group you take away; you don't have to justify a group you've not removed.

You might have to justify not providing a service for a group that has been indirectly removed - for example women who self-exclude from a mixed sex service. And I'd like to see a case arguing that the Guides addition of extra identities to a nominally single-sex group has in fact excluded boys from a mixed-sex and mixed-gender association (they admit girls, girls-who-identify-as-not-girls, and boys-who-identify-as-girls, but not boys who identify as boys).

But again in those cases it's the exclusion, not the addition, that would have to be defended.

Thanks for this. Does this mean that if I want the changing rooms at my local swimming pool to be truly single sex then I should persuade my DH, who is not a transwoman, to attempt to use the ladies room and then complain that he is being discriminated against when he is expelled? The pool management would then have the option of either allowing all men in no matter how they present or not allowing any men in no matter how they present.

I think that in addition, you yourself could complain that you are being discriminated against because lack of single sex provision impacts women more than men, and that the provider can lawfully provide women-only changing rooms but is refusing to.
And that your Article 8 human rights to privacy, dignity and safety have been infringed.

Sadly, though, I think your husband might struggle to get himself expelled from the women's changing room!

AlbertCamusflage

And yet we never hear these sorts of arguments (ie the arguments establishing the grounds for inclusion rather than exclusion of people with the gender reassignment characteristic) being rehearsed (or at least they aren't endlessly scrutinised and problematised in the obsessive way that the justifications for single-sex spaces are.

That's a really clever point, it had never occurred to me.

I don't think you have misunderstood.

You would need a lawyer who specialises in this area of law for a definitive answer. However, I think that, when the Equality Act was drawn up, the primary concern was about inclusion - about ensuring that groups with protected characteristics would be included. Singe sex services are treated as an exception where discrimination is allowed (Schedule 3, paragraphs 26 and 27). The provision of single sex spaces is treated the same way (Schedule 23, paragraph 3), as are single sex associations (Schedule 16, paragraph 1). Given this approach, I think it would be hard for someone to use the Equality Act to argue that a failure to provide a single sex space or service is a breach. They might have a case if, say, a provider was providing single sex services for men but not for women, but it is not clear that the Act as it currently stands could be used to argue that, say, a group aimed at women must exclude anyone who is not biologically female. Indeed, even if a group aimed at women lets in men, I don't think any of the women has a claim under the Equality Act, although they may have a claim to get their money back on the basis that the group isn't holding up its end of the bargain.

I keep reflecting on the different arguments made.

As we know Ruth Crawford declined to specify what “living in their acquired gender” means.

In his summing up Aidan O’Neill answered it. What was interesting were the points he made about a diagnosis of Gender Dysphoria.

As we know to get a GRC you need two doctors to say you have GD plus a lot of paperwork.

However, I think the point AP was making (happy to be corrected) was that GD has been downgraded/ reclassified? and is no longer a medical/mental health condition.

If that is the case how is anyone new getting a diagnosis of GD? If no one can now get a GD diagnosis how do they meet the criteria for a GRC?

Have I got it wrong?

GD is no longer a disorder but:

'a sense of unease that a person may have'

'Gender dysphoria is not a mental illness.'

'See a GP if you think you or your child may have gender dysphoria.

If the GP agrees, they can refer you to a gender dysphoria clinic (GDC) where you’ll be assessed by a specialist team.'

'The exact cause of gender dysphoria is unclear.'

'How common is gender dysphoria?

No one really knows because not all people who have a sense of unease about their identity, or already identify as gender diverse, need or ask for support from the NHS.'

'Treatments provided by the GDC are intended to provide lasting relief from gender dysphoria. This can mean different things to different people.
For some people, treatment may just involve acceptance and affirmation or confirmation of their identity'

https://www.nhs.uk/conditions/gender-dysphoria/

See? Clear as mud.

Thanks very much @NoBinturongsHereMate and @prh47bridge . It is very interesting to read your explanations.

I think I understand a bit more now about why the kinds of argument that I was wanting to see rehearsed (ie those seeking to demonstrate the reasonableness of including males with the protected characteristic of gender reassignment in single-sex groups) are not often seen.

Perhaps something adjacent to those types of argument would emerge if a man who did not have the protected characteristic of gender reassignment brought a case under the equality act complaining that he was subject to discrimination because he was being excluded from female spaces to which people with the protected characteristic of gender reassignment were being admitted.

For example, a case brought by a non-transgender man whose sporting success was being compromised by his exclusion from a woman's category that included transwomen.

The defendant would have to explain the respects in which policy that differentially excluded some men and not others was a a proportionate means of achieving a legitimate aim, which I guess would have to cite aims associated with the needs of gender-reassigning men.

But, apologies, I think I am in a rabbit hole and digging with all the blinkered energy of my obsessive little terrier

https://www.newstatesman.com/comment/2024/11/scottish-government-is-ignoring-womens-rights

Hannah Barnes writes about the case in the New Statesman.

Thanks for posting that Spectator article @Justme56.

That's an excellent piece by Hannah Barnes. It's written so that if you didn't know much about it before, you get all the key points of the case.

She even corrects Ms. Crawford's figures on GRCs as being an underestimate, which FWR posters picked up on.

I see she also includes Jo Phoenix's remarks.
Under this scenario, lesbians were no longer lesbians but rather, as the academic Jo Phoenix put it, “gender-critical women attracted to other gender-critical women”: this was sexual orientation being replaced by “belief orientation”.

There was some discussion about breast screening exams and whether women could require a natal woman to perform these. The suggestion was that excluding a male with a lady ticket from doing so would be 'discrimination' but surely ANY patient should be able to ask for ANY particular accommodation when it comes to their bodily boundaries. It's not discrimination if a person says 'I'd rather you don't touch me' surely? It's discrimination for that person not to be employed but not for individual patients to assert bodily autonomy?

Anyway, that aside, what if the patient is gender critical? If the NHS then expects that person to override their perception of someone as male that's enforcing a particular ideological belief (that someone can change sex if they have a lady ticket) upon that women - which is discrimination on the basis of belief, right?

Of course, the chances that the man in this situation has the power to force a discrimination suit or convince the NHS management he might do so is much higher than just some poor woman (who can't afford private insurance).

Which brings me on to something I've been thinking about for a while.

The EA2010 purports to protect vulnerable classes of people with 'protected characteristics' from discrimination. However, in practice it seems to do the opposite and becomes a tool of discrimination / abuse against those most vulnerable. Bear with me....

The problem is that to access the law in this country you need vast quantities of money and also emotional and mental resilience and / or support. Most women and children have neither (and working class men too for that matter). I.e. most people who are sex realist have less access to the law than genderists who - let's not forget - have captured most public institutions. These sex realists without money - particularly the women and children - are also those most vulnerable to harm from genderist law, policy and practice.

The vexatious complainants we all know about where women have been abused over and over and over again by the legal system are well known on this board so I won't go into examples in detail.

Lawyers seem to favour laws that look at the 'rights' of specific individuals over wider society (e.g. EA2010 vs safeguarding laws designed to protect ALL children) and so law gets created (precedent) on the basis of those individuals who can bring lawsuits - who are the wealthy and well connected. Not most women. Not children.

We've seen it again and again how only the man's wants are considered because of this environment in which the law is decided by powerful genderists - the appalling equal treatment bench book which for ever so long put men with lady feels (whether not not they had a lady ticket) quite clearly above women and children. Even in court cases where the most horrendous abuse of children has occured (e.g. Dolatowski) there is an environment in which HIS wants and HIS needs are placed above his child victim. It's frankly sick, and increadibly biased, but it's clearly the case. Dolatowski gets wrong-sex pronouns in court which creates misinformation and places HIS needs above his victim (whose pronouns never get mentioned - she's just given her sex based pronouns - so preferential treatment for the paedophile). I can only hope his child victim was not expected to use wrong sex pronouns for her abuser in court but given it was in Scotland I wouldn't be surprised.

Yes, there has been some tiny redress through crowdfunders and amazing grassroots organisations like FWS, LWS etc but even so the most confident, resilient and remarkable women have nevertheless been harmed by drawn out David and Goliath lawsuits where it's clear organisations with deep pockets have deliberately tried to lengthen the process to punish the women e.g. by having ridiculous numbers of witnesses. Afterwards some of these women have commented publicly on the trauma of bringing such court cases (thinking of Jo P here - marvellous woman that she is). Anyone vulnerable just simply can't do it.

The environment this creates is one in which organisations are quite blatantly favouring one PC over others because they know who'll have the backing, money and power to create a stink and take them or threaten to take them to court. Organisations flying rainbow flags all over the place but not actually having disabled ramps or any accommodation for people with disabilities or women with specific religious needs springs to mind.

The truly most vulnerable are the ones who lose out, as always. But it's clear the law is not fit for purpose, at all.

The TL:DR version of this is - the law is created by and is for mainly rich men (and some rich women, and occasionally a few who've managed to fight their way up from poorer backgrounds, fighting against the tide).

Fighting on such an unequal battlefield probably is a waste of time as it's already so stacked against us. Grassroots movements to bring sunlight and ensure societal and political change may be more effective (see the USA).

I'm not sure that's always the case. Many single sex spaces, or types of single sex space, have long historical precedents. Surely then it is the inclusion of people who historically have been excluded that would need defending?

But then again, I suspect the law doesn't care about historical precedent, just legal precedent. And we hit again the assumption that society is getting more enlightened and more righteous, and that the law always follows and reflects that.

I think it's always important to remember that the 'law' comes from people, and people can be evil.

It was 'within the law' in Nazi Germany to persecute and kill Jewish people. It is currently 'within the law' in Afghanistan to deny women basic human rights. For most of history, women were the property of men 'within the law'.

The law can change and the law can be abhorrent and comes from whoever the ruling class are and the GRA is abhorrent and harms the most vulnerable.

The fantasy a man can change sex is bad for safeguarding, women and children and the fantasy of lawyers that they can think themselves into denying biological reality via 'legal fictions' is also bad for women and children. And seemingly all these oh so clever lawyers who argue round the houses that up is down aren't clever enough to consider the impact on safeguarding law, somehow.