Can Goodwin be overturned?

[Mermoose]

I know nothing about how the law works, so apologies if this is a stupid question. But I've heard it (from not unbiased sources) a few times that the Supreme Court ruling is in conflict with Goodwin vs UK. I believe it's unlikely that there will be a case at ECHR level about this but if there is - if a trans person seeks to be treated as the opposite sex in the UK and their case ends up in the ECHR - could Goodwin be overturned or superseded?

Was that the case that resulted in the idiocy of the GRA?

Yes. As far as I know it was found that for a person who'd "transitioned" to have documents showing their actual sex was an infringement of privacy.

I don't think it is in conflict, because Goodwin was about changing sex on personal documents, pensions etc. That was resolved by the GRA, which is still in force.

Of course that leaves a rather confusing situation where a TW with a GRC can have a passport and updated birth cert that show female sex, but not be allowed into women's spaces. I'm sure there is more litigation to come on this.

It's nicely ironic that his privacy case has become infamous as really bad law!

Thanks for asking this question, I am also interested. Really thankful that the SC have taken the teeth out of a GRA but I still don't like the legal fiction thing.

I guess if all the problems can be resolved then I don't mind so much the concept of GRAs apart from mild annoyance at legal lying; but the problems need fixing - criminal record checks, GMC male Dr impersonating female Dr and lack of informed consent for examination, data collection being buggered.

I have seen an interview with Michael Foran explaining why it would be a bad move to repeal the GRA but I didn't follow it properly.

I have seen an interview with Michael Foran explaining why it would be a bad move to repeal the GRA but I didn't follow it properly.

Oh I must listen to that, if I can find it.

Sorry I can't remember where it was...
Remember it was a panel of about 4 of them (clever people!) on stage, and he explained that in order to repeal GRA then UK would need to exit European Court of Human Rights, both of which would leave a gap in UK legislation which judges would fill by making it up on a case by case basis.
My paraphrasing might not be accurate!
I am not doubting Michael Foran's analysis, I think he's brilliant and his legal explainers have been so helpful. I am just annoyed we need to have what is a lie enshrined in law...

I'd also like to rewatch it if anyone can remember it

Yes Michael Foran is great, although I do find his explanations sometimes go over my head. I wonder though was he saying that it would be a bad idea to repeal the GRA with the Goodwin ruling still in place? I'm saying something different (which may be impossible/unlikely) - can Goodwin be overturned or superseded. In that case the UK would not be rejecting the ECHR, the ECHR itself would have changed its judgement.

Ah sorry, see what you mean.

I found the clip, it's from an LGB Alliance event I think:
Michael Foran on X: "I am not a campaigner and have no intention of being one. I can advise on the law. You might not like what I have to say. Here is a clip of me talking about repeal of the GRA. You might not want me on your campaign because this is what I’ll say. https://t.co/WNCBhvceE5" / X

If the law is applied correctly, the FWS judgement supersedes any prior judgements that it contradicts.

I don’t think Goodwin needs to be overturned, as it relied on gender dysphoria being a recognised medical condition (which it was at the time), so Goodwin can easily be differentiated from modern trans discrimination cases, thanks to Stonewall’s campaigning which has de-medicalised transgenderism. It’s quite easy for a court to see why that situation is nothing like someone being a woman because they feel they are and “they know what they are”.

Para 64 from the FWS SC judgment explains the context of the Goodwin decision:

64. The ECtHR was struck in particular by the fact that the National Health Service recognised the condition of gender dysphoria and provided reassignment surgery “with a view to achieving as one of its principal purposes as close anassimilation as possible to the gender in which the transsexual perceives that he or she properly belongs” (para 78). Yet there was no legal recognition of her changed status in law. The Court discussed medical evidence about the causes of what it called “transsexualism” and noted that the vast majority of Contracting States, including the UK, provided treatment including irreversible surgery. However, the ongoing debate about the exact causes of the condition were of diminished relevance because “given the numerous and painful interventions
involved in such surgery and the level of commitment and conviction required to achieve
a change in social gender role” it could not be suggested that there was “anything arbitrary or capricious in the decision taken by a person to undergo gender re-assignment”: para 81.

The FWS SC judgment goes on to explain that the GRA went further than Goodwin to include trans people who hadn’t had the invasive surgeries (on the basis it would have be unfair to make additional rights depend on sterilisation), so IMO, Goodwin isn’t really applicable nowadays anyway, since gender dysphoria has been removed from the DSM and isn’t recognised as a medical condition anymore.

On that basis, I’d say that Goodwin isn’t particularly relevant to modern life (since it largely turned on the medical diagnosis and treatment, so more like a disability than a cultural thing), and that it’s the GRA is the issue (especially in terms of retroactively changing birth certs, etc).

Thanks LonginesPrime that's very helpful and interesting.

There was also a CJEU case recently about data protection and being allowed to change gender on official documents. As the UK has kept GDPR, unless data protection legislation is significantly changed and there are limits put on rectification in terms of gender identification then the GRA likely can't be overturned

What he’s saying makes sense in respect of the fact if you repeal the GRA, the case law that precipitated it (i.e. Goodwin) would still stand, so from this clip, he seems to be suggesting that you’d have to keep going back to court in each individual circumstance where a trans person who’s had surgery wanted to change their documents if we didn’t have the GRA.

But I think I must be misunderstanding the point he’s making, as obviously that’s not how the law works - we don’t need a new statute for every piece of case law that’s decided, as the case law is the law - there would simply be guidance on the fact trans people who’ve had the surgery should be entitled to x,y,z (as in random entitlements, not chromosomes..).

I guess the point he may be making is that if we repealed the GRA, we’d still likely need to go over all the same ground that Goodwin covered in making some new law or policy to replace the GRA, and would still get tangled in the whole forced sterilisation point, and so on.

I think the point he seems to be forgetting is that the situation would be quite different if the only trans people we were talking about were those who had been diagnosed with gender dysphoria and who have gone through all the surgeries.

Obviously, there would be many areas where even this group of trans people should still be recognised by biological sex (i.e. to where the FWS SC judgment has brought us to), but I do still think that if we were only talking about cases of genuine psychologically distressing gender dysphoria and people who have undergone all the surgeries, it would be a different landscape that would require a very different conversation from the current one anyway.

I get the gist that the GRA had the effect of avoiding certain human rights problems and, therefore, repealing it would conflict with our obligations under human rights law.

Some of the problems have already been solved, by the legalisation of single-sex marriage and by equalising tax and pensions law.

The other obligations laid on us by Goodwin are the legal recognition of transsexuals (GRA) and non-discrimination against them (EA), which seems unobjectionable.

The other implied outcome of Goodwin (transsexuals to be treated in law as if they had actually changed sex) has to my mind been effectively overturned by the EA itself.

Summary of relevant parts of Goodwin:

No concrete or substantial hardship or detriment to the public interest had been demonstrated as likely to flow from any change to the status of transgender people. Society might reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the gender/sex identity. It concluded that the fair balance that was inherent in the Convention now tilted decisively in favour of the applicant. There had, accordingly, been a failure to respect her right to private life in breach of Article 8.

I think it's fair to say that a substantial detriment to public interest (the rights of women and religious minorities) flows from treating transsexuals as having actually changed sex), and the EA solves this by treating the various protected characteristics involved completely independently of one another.

The sexes must by law be treated equally as far as possible, but when they really need to be treated differently then that cuts across other PCs and can't be overridden by a GRC.

I see a problem with Article 8 (right to privacy - part of Goodwin's case was that the fact that she kept the same National Insurance Number meant that her employer had been able to discover that she previously worked for them under another name and sex, resulting in embarrassment and humiliation).

The GRA has turned everyone's birth sex into private personal information. This must be reversed. Sex discrimination law is unworkable if we don't know people's sex.

The GRA has turned everyone's birth sex into private personal information. This must be reversed. Sex discrimination law is unworkable if we don't know people's sex.

I completely agree.

I think this will necessarily be confronted now as people grapple with the implications of the SC ruling, such as the GMC keeping doctors’ biological sexes confidential, and so on.

Hopefully, we can find a way forward, e.g. by adding an exemption to the UK Data Protection Act, similar to the ones for things like job references and exam scripts, on the basis we need the exemption to be able to function as a society and for the EA to be implemented effectively.

I see a problem with Article 8 (right to privacy - part of Goodwin's case was that the fact that she kept the same National Insurance Number meant that her employer had been able to discover that she previously worked for them under another name and sex, resulting in embarrassment and humiliation).

It wouldn't be hard to set up a formal pathway for getting a new NI number with a new name without falsifying birth certificates. The GRA could be reformed to provide that pathway: you'd get your gender recognition certificate and that would entitle you to a new NI number and your old NI contributions transferred to it.

The GRA has turned everyone's birth sex into private personal information. This must be reversed. Sex discrimination law is unworkable if we don't know people's sex.

The GRA has created a legal fiction that everyone's birth sex is private personal information. We know that in reality, people have eyes and make accurate spot assessments of other people's sex all the time. In the same way, GDPR creates a legal fiction that someone being disabled is private personal health information, when in reality a lot of disabilities are very visible and people with hidden disabilities have to out themselves all the time to get reasonable adjustments. And race is supposedly private information, but people have eyes and can see if someone is Black.

I think it's fair to say that a substantial detriment to public interest (the rights of women and religious minorities) flows from treating transsexuals as having actually changed sex

Exactly. When ECtHR decided that "society might reasonably be expected to tolerate a certain inconvenience", they neglected to consider women and girls, in particular those who are already vulnerable through disability or the victims of male violence.

It wouldn't be hard to set up a formal pathway for getting a new NI number with a new name without falsifying birth certificates. The GRA could be reformed to provide that pathway: you'd get your gender recognition certificate and that would entitle you to a new NI number and your old NI contributions transferred to it.

But isn’t the point of the new NI number to effectively erase their past so employers don’t find out their biological sex is different from the way they present?

Since their employers need to provide single sex spaces, the employers would need to know their sex anyway.

And the issue of humiliation caused by people finding out a person is trans (as happened in Goodwin, I think?) won’t be an issue now we have the EA, as trans people are protected from that kind of abuse now anyway.

I know this thread is about the law, not culture, but I do think a cultural shift is needed.

Some TRAs are rejecting the idea of legislation (amend the EA) or litigation (take a test case all the way through to the ECHR), because it would take too long. They're suggesting something more like cultural warfare - persuade the public they're terribly hard done by and get institutions to bend the law or even take it to the point of civil disobedience.

We need a different paradigm, of (eg) male transsexuals being out and proud, recognised in law, protected from discrimination, and not burdened with expectations about passing or medical treatments. But, crucially, not women. I wonder what % of TW would be up for it. (I realise this shouldn't be our problem, but it is.)

The issue of having to hide someone’s biological sex doesn’t really make much sense now we have the EA. I can understand how it might have been an issue before Stonewall and the trans rights movement appeared, but nowadays, it’s not like anyone should need to be embarrassed about being trans (aside from being associated with extreme TRAs).

Trans people aren’t classed as having a medical condition whereby they are so fragile that they can’t handle the truth of their biological sex - gender identity is treated as a cultural identity rather than a medical condition now, so I don’t think it makes sense now to facilitate them hiding the truth, as it implies they should be ashamed of their journey and their feelings.

They are protected from harassment for being themselves and it feels quite regressive for the government to help them hide the truth about their biological sex like it’s something shameful.

Good point about single-sex spaces.

They're suggesting something more like cultural warfare - persuade the public they're terribly hard done by and get institutions to bend the law or even take it to the point of civil disobedience.

The mask hasn't just slipped, it's lying shattered on the floor.

@theilltemperedqueenofspacetime I think the issue with old-school transsexuals speaking out (and many do), is that the DSM no longer recognises the medical framework that comprehensively analysed them and diagnosed their condition and facilitated their transition.

So while their needs are often distinct from culturally trans people, (1) there is no way for modern trans people to follow the same path as them as TRAs have succeeded in removing the medical diagnosis pathway (thus screwing over all people with genuine gender dysphoria) and (2) the other newer cohort of culturally trans people still exist and have different characteristics.

It’s unfortunate, as TRAs have actually weakened the position of actual transsexuals, both medically and legally.

Lawyer Peter Daley looks at the prospects for a case. Basically it is a no hoper so lets hope the TAs waste their time and money on it.

The assertion is being made that the Supreme Court judgment in FWS places the UK in breach of its ECHR obligations, as laid out in the case of Goodwin v UK. A court case is apparently being prepared on this basis.

I think this may be seriously misguided.

https://threadreaderapp.com/thread/1916519030279594463.html

Cheers for that fromorbit!