Obviously, leaving aside all the "the SC is corrupt" or "they never heard from trans people" rubbish, I got to thinking about if there is any sort of case that they could make.
I came across this from a trans barrister at the Civitas Law chambers.
This barrister has quite the CV (although quite an unusual name). They did PPE at Oxford and then got a scholarship to study at Harvard. They then worked for Stonewall for three years and then became a barrister.
They were then a Judicial Assistant (a lawyer who assists a senior judge doing research etc) for Lord Lloyd-Jones who was, incidentally, one of the five SC judges that decided the FWS case.
Their name? "Crash Wigley"
And, of course, from the description on the chambers' website
"Crash uses both she/her and they/them as pronouns."
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So, it would suggest that whatever Crash has written criticising the judgment should at least be looked at.
The whole thing is here:
https://www.translegalproject.org/post/for-women-scotland-a-legal-critique
From my (very limited) understanding, Crash criticises the judgment from three points.
Firstly, that the court ignored the Human Rights Act. Section 3(1) of the Human Rights Act 1998 provides that:
“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”
So, since transgender rights come under Article 8 of the ECHR then any interpretation of the EA 2010 must include transwomen as women (this is my very shortened summary of a detailed argument).
Crash goes on to make a case that the SC did not consider the HRA 1998 when it came to its decision because it did not explicitly refer to it in the judgment.
But (again in my very limited understanding), it seems that the opening words of Section 3(1) are very important:
“So far as it is possible to do so..."
In that it is only a requirement to do this if it is possible. But, more widely, it seems that, back then, not a lot of consideration was given to other groups.
If sex were not biological then does that not engage the Article 8 rights of women, gay men and lesbians? (and all men anyway, come to think of it?)
So, doesn't it come down to balancing the competing rights? And the SC has decided that the balance is to have sex be purely biological.
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The second criticism from Crash is that the House of Lords decided in a case in 2004 (Chief Constable of West Yorkshire v A) that the Sex Discrimination Act 1975 did include trans people and that the SC have ignored this earlier judgment.
Also that the SC ignored the Explanatory Notes and statements made to parliament regarding the GRA 2004.
OK, so I have no idea how important or not these things are.
The West Yorkshire case concerned a transwoman who had had surgery. He applied to join the West Yorkshire police but the application was rejected.
Under the Police and Criminal Evidence Act 1984 it appeared that he could search neither men nor women due to different parts of the Act and so he could not perform his duties if he did become a police officer.
He couldn't search women because he was a man and he couldn't search men because he "appeared in every respect to be a woman" and that might cause embarrassment to a man being searched.
So the transwoman launched a discrimination case under the Sex Discrimination Act 1975 which eventually went to the House of Lords.
Crash argues that part of that judgment (para 56) states that "for the purposes of discrimination between men and women in the fields covered by the directive, a trans person is to be regarded as having the sexual identity of the gender to which he or she has been reassigned."
Although, I will note para 11 that referred specifically to a "post-operative transsexual who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender"
Crash went on to say that since the SC did not hold that the West Yorkshire case was wrongly decided then they were bound to follow it. But they didn't.
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Crash then went on to talk about the EHRC. Their guidance up until now has been that trans people should use the toilets of the opposite sex and that they could have made a stronger argument to the court.
But it seems to me that the judgment did say why it rejected the EHRC advice.
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So, I have no idea of the strengths of these arguments (as well written as they are) but I would guess that these are some of the issues that TRAs may be coming up with in the future.