What do we think the 5 Supreme Court judges are thinking of what's happened since?

[loveyouradvice]

Do we think they are sanguine and just accepting that the law takes a long time to be accepted and worked through, given the previous misinformation?

Do we think they are surprised by the resistance from employers and service providers?

What do we think they are thinking`???

I'm a (now retired) legal academic and, fwiw, I have a different take on this.

Essentially, it was a (small-p) political decision. The case was from Scotland so the judgment was written by the Scottish Deputy President and the two women Justices to stifle various possible criticisms of ignorance or bias. There were certainly viable arguments either way, but neither was problem-free, as we are now seeing, I think that this was their way of handing the problem back to the politicians with the message 'This is your mess and we're not going to sort it out for you'. It wouldn't be the first time they've done this but the other times the cases haven't been so much in the public eye.

‘Told you we shouldn’t mention toilets’

🤣 perfect! 👩‍🍳💋

I suspect they’re pretty bewildered about the furore around toilets and butch lesbians!
To be fair, most of us are pretty bewildered about that one

They are also probably realising the levels in the UK of general education/critical thinking skills/preparedness of TRAs to argue in good faith. As low/low/low.

I was just watching an interview with Julie Bindel who was in the courtroom for the trial, and said she knew 100% they would side with FWS when it was explained to them that what the Scottish government was arguing implied a scenario in which you had two men, physically indistinguishable (including manner and dress), one who had a GRC and therefor had access to women's spaces and services and called himself a lesbian, and the other who didn't have one and therefor was simply a man. According to Bindel they were incredulous and the Scottish council became noticeably embarrassed.

That makes me think that none of them had previously thought through the implications of a broad interpretation of the GRC and had the experience of being peaked right there on the bench. And that there was a degree of shock at how dis-regulated gender ideology had become in law. That also seems to be reflected in the ruling, the language is measured but categorical -- wherever woman is used in the EA biological sex is meant. GRC holders are still a protected category, and can derive protections from appearing female (indirect discrimination), but in no case are they entitled to use spaces and services reserved for biological females.

one who had a GRC and therefor had access to women's spaces and services and called himself a lesbian,

Pre the Supreme Court ruling "women's space" applied the SSE clause that specifically says no trans woman (GRC legal woman) are allowed to be part of it, so not sure that this quote can be qutie right.

Admittedly groups such as RC Scotland tried to claim it was legal to include them, but it never was if they were saying it was a single sex service. And of course Scottish authorities failed to hold them to account for lying..

Admittedly I saw an article where Sex Matters made some bizarre statement like this one, so it seems to have grown as a "fact".

The majority of women services providers knew and know that there is a clause that specifically allows the exclusion of trans women from single sex spaces. And with the ruling if they are providing single sex services this now automaticallly means biological sex.

Which is why the only people directly impacted by the Supreme Court ruling are those with TW with a GRC.

Because their status as "legal Women" has been invalidated by the Surpeme Court ruling.

And much as I loved the story that it was the lesbians "wot won it" ie even a male judge can imagine that if you are a lesbian you aren't going to interested in a penis person, the ruling was actually that the protected characteristic of sex was being impinged on by another protected characteristic. And no other protected characteristic had this insult of being downgraded to a second class status.

The ruling was that the application of the GRA / GRC to the protected characteristic of sex, was in fact discriminatory.

Which we all knew, of course, and is why the EHRC prior to the ruling recommend to the Labour Government (who have buried it somewhere) that the GRA / GRC should be disapplied to the EA.

But then this is hardly surprising as the whole concept of "legal women" was created by the Labour Party who had not qualms about relegating the protected characteristic of sex to a second class status as an act of social engineering. Intending that in time it self indentifcation would be all that was necessary.

This paragraph contains an exception to the general prohibition of gender reassignment discrimination in relation to the provision of separate- and single-sex services. Such treatment by a provider has to be objectively justified.

This paragraph replaces a similar provision in the Sex Discrimination Act 1975. Example

A group counselling session is provided for female victims of sexual assault. The organisers do not allow transsexual people to attend as they judge that the clients who attend the group session are unlikely to do so if a male-to-female transsexual person was also there. This would be lawful.

https://www.legislation.gov.uk/ukpga/2010/15/notes/division/3/16/20/7

@IwantToRetire Pre the Supreme Court ruling "women's space" applied the SSE clause that specifically says no trans woman (GRC legal woman) are allowed to be part of it, so not sure that this quote can be qutie right.

I don't know that we disagree. The SC ruling by definition is what the law always meant. So, the EHRC guidance should always have been to exclude trans individuals from single sex services and spaces corresponding to their acquired gender.

However, a letter submitted to the court from the Scottish Government Legal Directorate did assert the following:

"Under the Equality Act 2010, ‘sex’ is understood as binary,
being a man or a woman. For the purposes of the Act, a person’s
legal sex is their biological sex as recorded on their birth
certificate. A trans person can change their legal sex by
obtaining a Gender Recognition Certificate. A trans person who
does not have a Gender Recognition Certificate retains the sex
recorded on their birth certificate for the purposes of the Act
...
"This EHRC Guidance confirms that a trans woman with a full
GRC has changed their legal sex from their biological sex
(male) to their acquired sex (female). Therefore that trans
woman has the protected characteristic under the 2010 Act of
their acquired sex (female)."

And the implication of this argument is the above scenario that Julie relates in the video. You're right in that it's only a thought experiment to show the absurdity of the SGLD interpretation (a persuasive one that also appears in the judgment itself) but that the actual legal reasoning proceeded along the lines you state.

Watching Lord ‘Lou’ Reid handover to Lord Hodge to deliver the judgement I got a slight sense of relief from him that he was not going to be ’in the firing line’ once the decision was delivered! It’s Lord Hodge who can be seen and heard delivering the crucial wording ‘biological sex’. Lord Hodge is also retiring this year. I think five great legal minds thought as carefully about how they delivered their judgement as they did in drafting the detailed (and incredibly worded) judgment.

I would love to hear what they really think though (and perhaps Lord Hodge may do post SC retirement interviews 😉)?

I do agree with Julie Bindell! There seemed to me to be a slight ‘frostiness’ in the court when the KC for FWS laid out their case (understandably imo - I thought he was playing to the gallery). Also referencing starting college on the same day as Lord Hodge was neither a good or relevant move I thought! Once Ben Cooper started speaking the atmosphere from the Bench changed completely imo - cogent and well argued legal points - particularly regarding lesbian association got them all interested!

I agree.

Once the full implications of legal sex versus biological sex is crystal clear, it becomes a no brainer. Male rapists in women's prisons, the complete decimation of women's sport, and the removal of sex and therefore homosexuality as a concept. The equality act made absolutely useless.

So, I suspect, the pushback has to be something of a surprise in its ferocity.

And I'm sure there will be moments of let me just doublecheck my thinking. Because like every freshly peaked person, they will think they must have missed something.

And when they realise they haven't, they, like everyone else, will peak again. And again.

We know this journey only goes one way. And they're on exactly the same train as the rest of us.

And, just like the rest of us, the misogyny, entitlement, and downright idiocy of what they are reading and seeing, will just be speeding them along faster.

Yes, that stood out for me too, it was striking how all the parties agreed it was unreasonable to expect the distinction to be whether someone had obtained a certificate or not.

I also saw this play out live, remotely. And it is as stated. I think you can still watch the hearing online.

This is fascinating. So the earlier concession, where self-ID was abandoned in favour of the (one would assume) easier to defend case of someone who had taken the “official route” being allowed access, was actually their undoing?

It really highlights that having a GRC doesn’t really mean anything, but that probably came about partly due to pushing self-ID “ahead of the law”.

I really do get a sense that transactivism shot itself in the foot by not campaigning openly and allowing each argument to unfold and rights to be awarded once they were shown to be reasonable.

Interesting suggestion from @TalbotAMan . The law is certainly a mess, but a huge amount of that mess was created by transactivists openly lying about the law, after it was made, while knowing exactly what they were doing. Stonewall and other transactivist groups acknowledged in 2015 that they knew the EA meant sex and that “trans people” could be excluded in the same way as everyone else. They then retracted that position quietly and started pushing self-ID to anyone that would listen.

I’d like to think that the judges were genuinely persuaded by the FWS case and actually changed their minds about it. If that is correct, then they will probably be shocked by the backlash, not so much as to it happening - that was inevitable - but to the extent of it and the revelation of how many law firms and public bodies are so captured that they refuse even to listen to the Supreme Court.

If this is their first time, they probably think it won’t take long to sort it out. Those of us who’ve been having these bright moments of hope for years, only to find there’s still a huge battle ahead, will probably be more cynical.

I'd love to see them looking at the arguments, though.

We are oppressed, we are marginalised, it's just like section 28.

Yeah but, it makes the equality act useless.

But we're oppressed!!

The reason it's all imploded for them is a combination of using dishonest means to try and persue their goals (as others have said), but it's also that the goals are themselves inconsistent and dishonest. The wider group of 'anyone who identifies as...' were being accommodated as they wished because you can't know who has a grc. The grc holder was a kind of proxi for medically/surgically transitioned person because the gra was enacted after a case which was about such a person. The rights in the gra were gained for those people even though the gra didn't require medical interventions. It would be like gaining rights for amputees, then saying 'but we can't make people lop a limb off to access these rights'. So the whole thing's on unstable ground. Plus, for the first time a court has thought through what happens when these rights come in contact with other people's rights.

I had also wondered what the judges are making of the aftermath. Good thread idea op. I especially thought of them listening radio 4 and hearing Sumption pontificating.

I would hope they have found their way to here and are reading up, slack jawed.

<waves at all the newly peaked>

Yes, as you say if self ID was what was being pushed for in the hearing they would at least have had a coherent, if wrong headed and unfair, argument.

But that is perpetually true. So why does it appear to have caused such a furore in this case about this subject ?

I am a lawyer, and whilst I have many criticisms of my profession, it astounds me to read TRA's proudly proclaim that the SC judges either "didn't think it through", were "bought" or "stupid".

How do they think judges get to the Supreme Court? The ignorance is bafflng.

Not baffling.

"Studied".

"..the ruling was actually that the protected characteristic of sex was being impinged on by another protected characteristic. And no other protected characteristic had this insult of being downgraded to a second class status"

Thanks @IwantToRetire for this very succinct summary. Saving to my mental reference file for the next time someone complains to me about the decision.

Yes it’s still available, I have recently watched it.
I agree it really was the inability to differentiate between someone with a GRC and someone without which kept being of interest to the judges. The judges themselves clarified with the KC for Scot Ministers several times that you cannot ask if someone has a certificate as that is private information, and that the trans person with a GRC may look outwardly no different to one without. It was becoming so obvious this was unworkable.
And to me the bit that really stood out was the KC for the Scottish ministers stating in court a trans woman without a GRC is a man!

Do you think any of them will agree to go on Desert Island Discs after this? I thought they had Lady Hale on a year or so ago?

I quite expect them to have to justify why they didn’t worry that a few men might get upset!

I can’t remember which day of the trial it was when they had to break early for lunch so the SG counsel could have a go at making a flowchart (but that would be a good “late morning” to watch).