FWS v Scottish Ministers will be handed down Weds 16th April at 9.45am

[IDareSay]

The Ruling in FWS v Scottish Ministers will be handed down next Weds 16th April at 9.45am It will also be streamed via the UKSC website, so you can watch live.

https://x.com/ForWomenScot/status/1910272949350695371

*for same sex-attracted men.

I was too late for the edit.

When we debate the minutiae of the SSEs (as set out in law and statutory and non-statutory guidance) we risk missing the wood for the trees.

They are merely a specific, non-exhaustive embodiment of an important pre-existing principle of discrimination law: that it's only illegal if it's unfair; that people may have to be treated differently in order to achieve fairness; that sometimes pleasing everyone might not even be possible, in which case we must just try our best.

In order to avoid litigation around these principles, government created SSEs from the get go, starting with uncontroversial (at the time!) areas like sport. And introduced the concept of LAPAs so that important public goods (like, say, safety, or boosting participation by underrepresented groups) could still be achieved. (Although I would argue that safety and boosting participation are indirectly issues of fairness too.)

So the law on sex can be summarised as 'men and women must be treated the same, except when to do so would lead to unfair or otherwise bad outcomes arising from the fact that they have different bodies, in which case they must be treated differently'.

If, in the above, 'women' means legal females, then it includes some people who don't have different bodies from men, so the law cannot be applied, logically.

ETA I'm really looking forward to reading this decision, and if the quality of argument is half as good as I see on this board I'll be absolutely made up.

It was deeply unpopular last time round (only the TRAs and the idiots at Holyrood thought it was a good idea), and I really can't see them risking having another go at it.

I just don't understand why, even though it failed, TiMs are self-IDing into women's spaces with so little pushback. Toilets, changing rooms, pool competitions, rape crisis centres, prisons, everywhere in fact. So many women's facilities are now de facto mixed sex, with TiMs just marching in, or even being invited in. Women who complain about this, like Sandie Peggie and the Darlington nurses, are the ones who are ostracised.

And even if the case goes in favour of women, I can't imagine these males saying, "Righty-ho, game over, we'll just go back to the men's spaces." So what next?

Might a better example be that you came in one day in blackface, said this meant you were now black in reality, and demanded access to training and support programs specifically for BAME colleagues?

I can see an argument that trans age would be ridiculous and an appropriate reason to fire sometime because a toddler wouldn't perform the job correctly, but a transgender or transracial person could continue to be competent, while being massively offensive to a protected characteristic they claimed to be a part of now.

if FWS win the case, then it doesn’t matter too much if the Scottish government resurrects self-id, because the Equality Act’s single-sex exceptions won’t apply to people with a GRC.

This is where the Telegraph article has taken my thinking. If FWS win, and it is determined that sex discrimination, as per the EA, relates to natal sex alone, all males (GRC or not) will be classified as males when it comes to SSEs.

The UK government's veto of the Scottish self ID act was based on the idea that it undermined the EA. If FWS win, and GRCs are deemed irrelevant to protections based on sex, that veto doesn't hold.

Especially with Holyrood elections next year and Scottish Labour having come out against it.

While I'm here, please could someone tell me what LAPA stands for? I've tried to search for it, but have drawn a blank.

I just don't understand why, even though it failed, TiMs are self-IDing into women's spaces with so little pushback. Toilets, changing rooms, pool competitions, rape crisis centres, prisons, everywhere in fact. So many women's facilities are now de facto mixed sex, with TiMs just marching in, or even being invited in. Women who complain about this, like Sandie Peggie and the Darlington nurses, are the ones who are ostracised.

My understanding is that this is due to them following Stonewall law (the law as Stonewall would like it to be, rather than what it is). If FWS win, and the law is clarified, organisations will have to change their policies.

Trying to keep up, sorry - would this mean it would be very easy for men to acquire a certificate that said they were women, but that had no actual effect on how they were treated? I.e. they could not use it to access women's single sex spaces?

I think I've mentioned this before on MN, but when I was very small, I had a lovely certificate, stating that I was member of the Biggles Air Police. I think it needed quite a few cereal package tops. It did state on the certificate, though, that it didn't entitle me to participate in any missions though. I'd like to see the GRC either abolished, or reduced to this level of significance. Cos it's always seemed to me a but unclear what the point of a GRC was. It seemed to be suggested that it didn't have any great practical value (other than cossetting the ego of its owner, obviously). But what's the point of a document that doesn't offer its bearer any advantage? Are we now reaching the point where people who have a GRC will somehow have more rights or options under the law than those without one? Because that doesn't seem right or equitable to me.

It's because even a transwoman who is legally male can still call on discrimination law. Because everyone else (men who arent trans: women) have all the things. If they can't have the women's things, then they don't have any things.

This relies on not being expected to share the men's things (or participate only in gender neutral spaces) because that would be 'insulting and unpleasant'.

Legitimate and proportionate aim - a sort of catch-all for allowing discrimination if there's a very good reason for it. Can be used to balance the needs of people with different protected characteristics, given there's no hierarchy.

If FWS win and GRCs become essentially meaningless except for pandering to the vanity or mental delusion of the holder then i think we'll see lots of 'look at me' performative breaching of SSE. Like the nonsense in the White House women's toilets after Trump was inaugurated. So, more court cases probably but with sad men as the claiments. Like HH in the pool case at the moment. Or service providers will go mixed sex gender neutral or alternatively try to continue with self-id (possibly after mantrums with assistance of handmaid's and, to a much lesser extent, handblokes although they may be in positions of power like that Wickes fellow). In short, more court cases.

If FWS lose i don't know what will happen.

This was supposed to quote @DuesToTheDirt 's question at 1041! Quote function on the Fritz, or my fat fingers?

This is absolutely frying my poor brain. I’m having to read posts & linked articles really slowly. And I’ve been following this since 2016. So I cant help wondering how people who aren't aware of the background, will understand the outcome, especially once it has been filtered by the BBC and others.

Every time I think I have got a grip on what the various outcomes could mean, it feels like there is another twist. In my head it’s so so simple and yet we have ended up with legislation that is so contradictory and illogical.

Whatever the result, I would like to think that parliamentarians will learn from it, but I’m not holding my breath.

Trying to keep up, sorry - would this mean it would be very easy for men to acquire a certificate that said they were women, but that had no actual effect on how they were treated? I.e. they could not use it to access women's single sex spaces?

That is my understanding. If there is a reasonable and proportionate rational for a single sex provision (which there needs to be for justifying excluding males), having a GRC would not trump this.

The majority of people in the UK with trans identities do not have GRCs. Sometimes it is argued that this is because the process is humiliating/ degrading. Sometimes it is claimed that it isn't necessary because a passport or driving licence with their chosen sex marker is all they need to achieve their aims.

If FWS looses, we will see a dramatic increase in the number of applications for a GRC. The court case definitely highlighted that legal entitlement did not extend to those without a GRC. The government will come under immense pressure to review the GRA and process, from all sides.

If FWS win and GRCs become essentially meaningless except for pandering to the vanity or mental delusion of the holder then i think we'll see lots of 'look at me' performative breaching of SSE.

I don't think this would work in their favour!

Things that would be effective, but won't happen (because they want the validation of being affirmed through being categorised as 'female'):

• Rallying men to put up stickers and flags in single sex males provision stating 'TW welcome here'
• Campaigning for gender neutral facilities alongside single sex facilities
• Campaigning to address the issue of male violence

Every time I think I have got a grip on what the various outcomes could mean, it feels like there is another twist. In my head it’s so so simple and yet we have ended up with legislation that is so contradictory and illogical.

Yep, it's an utter mindfuck of obfuscation when it's reported in the press.

I like the "simple" graphic that Sex Matters created which shows the absurdity of turning a belief into reality, via a certificate. Screenshot below.

So if FWS loses and my husband gets a GRC to say he's a woman, I'm now a lesbian (as is "she"). But if I then get a GRC to say that I'm a man, we're both back to being straight again. TBF to the Scottish government, that does seem to be a reasonable interpretation of the law, given the spousal exit clause in the GRA which allows a spouse to divorce someone before the marriage reverts from being a straight marriage to a gay one.

Just to clarify, I would have no issue being in a lesbian marriage if I were a lesbian. My issue would entirely be that my own sexual orientation should never be affected by someone else getting legal recognition of their personal belief (that they have a gendered soul that is the opposite sex).

Surely common sense will prevail and the law will recognise that nobody's personal belief should ever affect someone else's (legal) reality.

My understanding is that if FWS wins, GRCs will be as meaningful as a certificate which states you're a member of the Biggles Police (great analogy!) or if a Christian wanted one that says "god loves me".

If someone needs a certificate to validate their own feelings and beliefs, fine. But these certificates need to be toothless in law. Thankfully we don't get children being indulged as real police officers, or Christians demanding priority access to healthcare or other services over non-believers (luckily most Christians seem to believe that god loves everyone, no certificate required... even atheists like me... so it wouldn't happen). Yet for gender identity, these certificates get a solemnity that makes zero sense.

Yes, some people genuinely believe that they have a gendered soul that is "in the wrong body". Yes, that must be awful to have this genuine belief and distress. But that doesn't mean everyone else should need to accommodate the belief as if it were true.

@CarefulN0w

The brain-frying effect is part of the point!

@JazzyJelly

[What if] you came in one day in blackface, said this meant you were now black in reality, and demanded access to training and support programs specifically for BAME colleagues?

Right to the heart of the problem. Its not in the power of the law to dictate what is factually true, or even what people subject to the law believe to be true (although it can force them to pretend, if it's sufficiently illogical and authoritarian).

The spousal exit clause in Scotland was removed when same sex marriage was implemented (I believe), so even ‘being fair’ to Scotgov, they’ve already removed that clause & Scottish women don’t have the option to annul/divorce before a GRC is granted.

I’ll see if I can find something specific on that - TWV & MBM did cover this when the GRRB was being pushed through.

Thanks. Very helpful. I'd never have guessed it.

Ah, OK. I hadn't realised Scotland had removed this clause. I knew it had been the cause of much discussion but not that any government in the UK had done something as ridiculous as this. FFS.

I guess it highlights just how committed the Scottish government is to the power of these certificates. Wow.

nobody's personal belief should ever affect someone else's (legal) reality.

Clearest naming of the problem I've seen yet, I want that on a t shirt!

The problem is the consequences for everyone.

The fact that the main ‘solution’ to single sex toilets becoming mixed sexed is to make the cubicles private and acoustically sound proofed means that:

Anyone having a heart attack, stroke, brain haemorrhage, seizure, asthma attack, hypo etc is more likely to be seriously harmed or die because they won’t be seen on the floor in a cubicle from the outside.

People can lie in wait in one cubicle then go into another to attack unwitnessed. This is particularly noticeable when the government says there has to be a ‘safety’ measure to be able to open a door outwards from the outside (cos bodies prevent the door opening) so no door is really secure.

People, particularly women and children are led into cubicles to be attacked.

People go into the private toilets to have sex, do drugs, sell drugs, bully, self harm.

Emergency building evacuations are affected. You may not be able to hear/see an alarm if not in every cubicle and rescuers have more problems finding people.

Toilet cubicles can’t be cleaned and ventilated as well so it has been proven that disease spread is greater.

So unless we go back to having toilet door gaps, particularly under the doors, we are going to have more and more of the above in public and school toilets. It’s already happening in schools and public toilets as more toilet blocks become private.

If people can’t have single sex toilets in public or in schools, it appears privacy now is more desirable and overrides safety. It harms everyone.

There are many reasons to maintain toilet door gaps and therefore toilets need to be single sex.

would this mean it would be very easy for men to acquire a certificate that said they were women, but that had no actual effect on how they were treated? I.e. they could not use it to access women's single sex spaces?

Only if the new interpretation of the law was properly applied. But remember, we're talking about institutions that were captured years ago and that capture has only become deeper over time. The activists in position will simply ignore the new interpretation of the law, and so it will require more litigation, place by place, situation by situation, to try to get it taken on board.