ChatGPT's analysis of today's submissions is a bit depressing (I don't trust its judgement, obviously, but it is usually useful in setting out key themes, etc):
Below is a balanced, court-facing assessment of the strengths and weaknesses of the arguments you’ve summarised, followed by a reasoned, provisional prediction of how Swift J is likely to decide. I’m drawing on the transcript evidence you provided plus the structure of judicial review, Gillick illegality, Schedule 3, and the post-FWS landscape.
1. STRENGTHS & WEAKNESSES OF THE ARGUMENTS
A. EHRC / Tom Cross KC – Strengths
1. Clear reliance on For Women Scotland (FWS)
- TC’s strongest point is that FWS gives the Supreme Court’s authoritative meaning of “sex” and demonstrates the conceptual problems of allowing GRC-sex to define access to SS facilities.
- Swift J repeatedly signalled that he thinks FWS is highly relevant to this guidance and that “sex” in contexts involving privacy/dignity is biological sex.
- This anchors TC’s argument that a “single-sex” toilet must exclude all of the opposite biological sex.
2. Solid statutory ground under the 1992 Workplace Regulations
- The argument that the 1992 Regs require SS toilets by biological sex is well-constructed:
- multiple provisions assume male/female bodily differences
- Schedule 1 uses “men/women” numerically
- consistency principle in statutory interpretation
- The judge probed very hard here—but largely in a way that tested the point rather than undermined it.
3. Gillick test — narrow and high threshold
- TC repeatedly emphasised that to succeed, the Claimants must show the EHRC authorised or approved unlawfulconduct, not simply that the guidance was unclear or incomplete.
- That is a significant hurdle. Courts are reluctant to strike down guidance unless it expressly tells readers to break the law.
B. EHRC / TC – Weaknesses
1. The “if you admit one TW, you must admit all men” chain argument
- This is the weakest part of the EHRC case.
- Swift J clearly found it counter-intuitive, under-justified, and possibly wrong in law.
- The judge pressed TC repeatedly:
- Why does allowing one trans woman mean the service becomes mixed-sex for all men?
- TC’s explanation (direct discrimination + s.29) felt strained and the judge was not persuaded.
2. Guidance may indeed fail the “objective reader” test
- The judge kept returning to the question:
- Would an ordinary reader know the legal position after reading this? Or would it mislead?
- TC struggled when asked whether the EHRC’s phrasing (“in some circumstances”, “may”, “should”) lacked legal precision.
3. Tension between EHRC’s equality focus and its failure to integrate other laws
- The judge strongly criticised the EHRC for not addressing the Workplace Regulations or other statutory duties in its guidance.
- Swift J clearly thinks guidance must reflect the whole legal landscape; TC’s fallback (“EHRC only focuses on equality law”) did not satisfy him.
C. Minister / Gannon – Strengths
1. Challenges the “less favourable treatment” premise
- ZG’s best argument is that even if a TW is excluded from the women’s toilet, it may not be “less favourable treatment” because:
- a comparable service is provided next door;
- circumstances differ materially.
- Swift J explicitly indicated sympathy with this line: it fits orthodox discrimination analysis.
2. emphasises fact-sensitivity of discrimination
- This resonated strongly with the judge.
- Helps undermine the EHRC’s absolute “if you include one TW, you must include all men” claim.
D. Minister / Gannon – Weaknesses
1. Struggles to articulate what a “trans-inclusive single-sex toilet” is
- Every time she gestured at this, Swift J pushed her back with FWS and Schedule 3.
- This undermined the government’s attempt to carve out room for a hybrid category.
2. Indirect discrimination arguments were speculative
- Raising theoretical indirect discrimination against women (e.g., religious objections) didn’t appear to land with the judge.
E. Claimants / DS & AG – Strengths
1. Gillick framing – the guidance does imply unlawfulness
- Their best line is:
- The EHRC guidance affirmatively states certain arrangements are unlawful, when the law is more nuanced and fact-sensitive.
- They argue the EHRC misstates Schedule 3 by assuming PMOALA always applies.
2. Very strong attack on the language of the bullet points
- The judge clearly agreed that the bullets, read together, present a crude and categorical rule, not the nuanced analysis the statute requires.
3. Good statutory construction point about the 1992 Regs
- They convincingly argued Regs govern provision, not management.
- This allows them to maintain that trans-inclusive arrangements can be lawful without breaching the Regs.
F. Claimants / DS & AG – Weaknesses
1. Difficulty with comparator analysis post-FWS
- DS’s suggestion that the comparator for a TW may be a cis woman (even after FWS) meets obvious doctrinal resistance.
- Swift J repeatedly pushed back and suggested this might contradict FWS.
2. Standing arguments were accepted but not warmly
- The judge didn’t seem fully convinced but let it through. This is fine but does not strengthen Ground 1.
3. Their reading of the Workplace Regulations is less textually grounded
- The court may consider that they downplayed the regulatory duties too far.
2. LIKELY OUTCOME – REASONED PREDICTION
Based on Swift J’s interventions, his known interpretive style, and the transcript:
GROUND 1 – Gillick illegality
LIKELY RESULT: Claimants succeed in part
Specifically:
- The judge is likely to find that some of the bullet points misled readers into thinking certain trans-inclusive arrangements are unlawful per se when they are not.
- The “if you admit one TW you must admit all men” point looks especially vulnerable; this is the part he pressed hardest.
- He may hold that the guidance gave the appearance of legal compulsion where none exists → classic Gillick unlawfulness.
However:
- He will not find that the EHRC authorised or encouraged employers to breach the Workplace Regulations.
- He is likely to treat it as a misstatement / oversimplification, not an instruction to break the law.
Thus: a partial quashing or declaration,
not total victory.
GROUND 2 – Statutory duty / purpose of the EHRC
LIKELY RESULT: EHRC WINS
- The judge did not seem persuaded that the EHRC acted outside its statutory remit.
- The threshold is high; claimants probably fall short.
GROUND 3 – Procedural unfairness / inadequate consultation
LIKELY RESULT: EHRC WINS
- Very limited discussion; unlikely to succeed.
3. OVERALL PREDICTION
Predicted Judgment (short form)
Some parts of the April and June bullet-point guidance will be declared unlawful and quashed for misrepresenting the law (Ground 1). The rest of the challenge will be dismissed.
The court will likely emphasise clarity requirements for statutory guidance but avoid ruling on the broader sex-definition issues beyond what FWS already settles.
If you want, I can also prepare:
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A one-page “likely judgment” summary suitable for briefing,
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A matrix of which bullet points are most vulnerable,
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A prediction of how each judge on appeal might treat the issue, or
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A neutral, case-note-style write-up for colleagues.