EHRC statement on Supreme Court ruling in For Women Scotland v Scottish Ministers

[IwantToRetire]

The Supreme Court gave its judgment in the appeal of For Women Scotland v Scottish Ministers.

As Britain’s independent equality regulator, the Equality and Human Rights Commission (EHRC) intervened in this appeal to assist the Court in assessing the legal and practical implications of the case.
The Supreme Court has ruled that a Gender Recognition Certificate does not change a person’s legal sex for the purposes of the Equality Act 2010.

Our statement

Responding to the judgment, Baroness Kishwer Falkner, Chairwoman of the Equality and Human Rights Commission, said:

“This judgment from the Supreme Court has significant implications for the interpretation of Britain’s equality laws. We welcome the clarity this ruling brings; its importance to those whose rights are affected under the Equality Act cannot be overstated.

“The central issue raised by this appeal was how ‘sex’, ‘man’ and ‘woman’ are defined in the Act. Our submission to the Court highlighted significant problems with the practical application of a definition of ‘sex’ which allowed those who have acquired a Gender Recognition Certificate (GRC) to be treated as their certified sex in the Equality Act. These inconsistencies impaired the proper functioning of the Act and risked jeopardising the rights and interests of women and same-sex attracted people.

“This judgment resolves the difficulties we highlighted in our submission to the court and in our advice to the former Minister for Women and Equalities more than two years ago. These include the challenges faced by those seeking to maintain single-sex spaces, and the rights of same-sex attracted persons to form associations.

“We will take the outcome of this appeal into account in our ongoing work as the regulator of the Equality Act. That includes the development of our revised Code of Practice which, subject to ministerial approval, is expected to be laid before Parliament before the summer recess. We will be working at pace to incorporate the implications of this judgment into the updated Code, which supports service providers, public bodies and associations to understand their duties under the Equality Act and put them into practice.

“Where this judgment impacts upon our other advice for duty-bearers, such as our single-sex services guidance, we will review it as a matter of urgency and alert users to where guidance has been withdrawn or needs to be updated.

“In the meantime, the EHRC will continue to exercise its statutory duties to regulate and enforce the Equality Act 2010, ensuring protection for all protected characteristics including those of sex, gender reassignment and sexual orientation. We remain committed to promoting equality and tackling discrimination in all its forms.”

https://www.equalityhumanrights.com/ehrc-statement-supreme-court-ruling-women-scotland-v-scottish-ministers

Another way of saying we was wrong

Reddit Scotland still keeping the faith

https://www.reddit.com/r/Scotland/comments/1k1b20k/comment/mnkw39g/

You're all Nazis who'll turn against immigrants next.

And the macho trans man in a women's ward dilemma has come up again

https://www.reddit.com/r/Scotland/comments/1k1b20k/comment/mnkxgmt/?utm_source=share&utm_medium=mweb3x&utm_name=mweb3xcss&utm_term=1&utm_content=share_button

They (EHRC) weren't wrong.

The had already advised the Government to disapply the GRA in relation to the EA which is more radical than the Court ruling.

And are still waiting to hear back from the Government for their response to this.

And as they are the one charged with making sure the EA works you would hope the Government would listen to them.

But suspect the Government will not respond as that would be too radical for them.

In the meantime the EHRC is faced with having to tell people how what the judgment means in practice.

As unenviable job, having to put other people's silly ideas into practice.

But thank goodness for Baroness Falkner who has rescured the EHRC from captured TRAs. But no wonder the Government doesn't want to re-appoint her.

The EHRC were also on the case of NHS Fife, on Sandie Peggie's side, and keep asking them to explain their funny politics.

They bloody well were wrong they were interveners on the Scottish side in terms of legal interpretations.

There position has always been that as written the SSE are a mess.

But as written the interpretation given by Lady Haldane was right. Not that they thought it should be this, but this is what Parliament had agreed the law should be. (ie Labour wanted men with a GRC to be a "legal woman" for all purposes, except when it was a SSE service.)

I had never realised until yesterday that a Court can say Parliament may have written this but we are saying it means, or should mean something else.

I thought the Court would do what the EHRC has done which is say this law as written is a mess, and tell MPs to amend it.

So now that the Court has said this, and the EHRC wants the the GRA to be disapplied from the EA you would think Parliament would act.

But they wont they will spin it out, and once Baroness Falkner has had to leave they will put some useful idiot into her place in the EHRC who will suddently find some way to get round the Supreme Court ruling.

The EHRC has a terrible job. Having to explain what the idiots in Parliament have created as being logical.

A bit like being a spokesperson for Trump.

Sorry, but i disagree with you, with the greatest admiration for you (i roll called you on the thread of honour)

The Supreme Court explained that they followed strict statutory interpretation rules, which means they looked into the meanings of the words of the EQA, in detail, and made a determination on what parliament MEANT, WHEN they passed the ACT.

They looked at the word sex in every sentence of the Act, and concluded it means biological sex, for it to make sense at all. And spent 88 pages explaining this.

Judges can never say parliament is wrong as it has constitutional supremacy (except where legislation collides with international law.)

The EHRC were very clear at the hearing that they followed strict GRC would mean that holders of said certificate were also protected under the characteristic of sex, clearly incorrect, as Helen Joyce has pointed out.

Finally the law as set out is very clear regarding the EQA and there is no possibility of the EHRC “finding their way around this” they are a statutory body who will follow the law when it is set out clearly. And now have an obligation to regulate bodies who fail to follow the law.

which i where we are now thank goodness.

I have a question. I keep seeing comments saying that trans groups/allys were not represented at the appeal but I also read somewhere that none of them had applied to be (but I can’t find that again). Anyone know the truth of this?

A retired trans judge applied to be joined to proceedings which was denied.

The Scottish government who were defending their position that trans women have the protected characteristics of sex, were in effect defending the position of those from the trans community (if there is such a. Thing) that trans women are real women.

So in a nutshell Trans people were fully represented by the Scottish Government, no less.

The SC judgement means that EHRC and Lady Haldane and the Inner House judges (and you, OP) were wrong as a matter of law. The case was decided according to the legal principles of interpretation - a GRC does not change the sex of a person for the purposes of the EA2010.
The judges of the SC referred approvingly in their judgement to an article that Dr Michael Foran wrote - the same Dr MF that you have dismissed as a "moron" because you disagreed with his analysis.
Everyone gets things wrong sometimes. You're not a lawyer and these matters are complex. It would be more dignified to admit your error and move on.

re responses saying I am wrong.

I am saying what the intent of the EA as amended to include the GRA was.

And this is that a GRC would say that someone had changed their "sex".

And the only time this would be disallowed is when a SSE service could say a GRC didn't mean you have changed sex.

That is in the literal interpretations of the law AS WRITTEN that led to those earlier outcomes.

Not only that but the people who drafted the law said that is what then intended.

Let that sink in.

And this is why Labour was always so smug because they had allowed this one little concession to women's sex based writes.

So it is irrelevant if retrospectively someone is saying this isn't what they wanted. That is what the then Labour Government set out to do. And have always clearly said so.

The fact that the Supreme Court is saying that the use of the word sex can now only be taken to mean biology is satifyingly like Labour having a custard pie thrown in their face. That they thought they had so cleverly stitched women up to be in a subservient position and then have the Supreme Court upend must be like a bolt from the blue.

That is why prior to the ruling the EHRC was lobbying to get the GRA / GRC "disapplied" from the EA because it meant that the only protected characteristic in the entire Act that was undermined by another law was sex.

And you can quote who you like, but based on those analysing the likely outcome it was always a 50 / 50 chance.

And if as you are now saying the interpretation was that the word sex in the EA was always meant to be taken to be biology, why did the Government refuse to act on the petition that asked for the act to be amended to clearly state that the word sex was about biology.

Why did they write the SSE/

I think you are totally missing the point.

Whether or not 15 years later a group of Judges has decided that the Act can be read to mean that the word sex is about biology totally glosses over the actual issue.

That those who wrote it DID NOT think that the word sex was about biology.

For heavens sake, what has most of the discussions around the EA and SSE been about. How trans activists were able to capture not just society but politicians.

To try and pretend that this never happen is just not credible given what has actually been happening for the past decade or so.

(As a foot note, I still l think Foran is a moron, and as I said on another thread I actually think it was the submission from lesbians that won the arguement because it is the most immediate indication that the Labour concept of a "legal woman" was totally incompatible with the fact that lesbians are same sex attracted. )

In fact in the simple explanation circulated by the Judges they are saying the same of the EHRC. That applying the GRA / GRC leads to discrimination. That's why the EHRC wanted it to be disapplied. And that's why most women, and I have said this, is that as written and interpreted as intended by Labour at the time, it was discriminatory against women.

And the Judges included this as an example of that discrimination:

... A certificated sex interpretation would also weaken the protections given to those with the protected characteristic of sexual orientation for example by interfering with their ability to have lesbian-only spaces and associations ...

So the ruling although summarised as being about the word sex meaning biology, the ruling was based on the fact that the GRA / GRC interaction with the EA resulted in discimination against to other protected characteristics.

(Not as some TRAs are trying to say that Judges aren't competent to talk about biology. It is about how a GRC discriminates.)