Ben Cooper’s Analysis of Supreme Court Judgement in FWS v Scottish Ministers

53 replies

UtopiaPlanitia · 05/07/2025 10:34

Ben’s analysis of the judgement has been published and I thought FWS would be interested in reading it:

https://oldsquare.co.uk/wp-content/uploads/2025/07/FWS-Why-the-SC-decision-does-not-breach-trans-rights.pdf

OP posts:

ArabellaScott · 06/07/2025 19:30

Brainworm · 06/07/2025 11:57

Ironically, reading this thread has brought to mind a recent podcast where a gay rights campaigner described Stonewall’s approach in the 80s and 90s. He said that’s well as lobbying those who they felt could be influenced to back their mission, they also worked hard to meet with groups who would likely always oppose gay rights. He said they didn’t, for a minute, think they would win them over, their aim was to become understood as people whose requests were not wildly unreasonable but simply conflicted with what those opposing them wanted and valued. He said this was very effective in creating a less febrile atmosphere surrounding gay rights - and this did contribute to their successes.

I think lessons could be learned from this. In addition to legal action, women’s groups can seek to have discussions with captured organisations, even where it is unlikely that they will significantly change their stance. The hope is that they will come to a better understanding of the motivations for sex based provision, specifically this not being about transwomen. Even just listening would reflect a major step forward because this alone will be opposed by TRAs.

Thats an excellent idea.

Intothetrees · 06/07/2025 19:36

MarieDeGournay · 06/07/2025 13:36

Thank you Intothetrees, you are an answer to my prayers request upthread for an expert opinion on what seems so duh! to non-legal people.
Thank you for your clear posts, you've explained it really well.

Of course, it's all foreign to me because I am in Ireland where 'they' got rid of the word 'sex' altogether from legislation and replaced it with 'gender' - they even managed to do that retrospectively to original equality legislation.

1977 Employment Equality Act
2.—For the purposes of this Act, discrimination shall be taken to occur in any of the following cases—
(a) where by reason of his sex a person is treated less favourably than a person of the other sex.

There are specific exceptions listed in the 1977 Act eg
17.2.(d) where either the nature of or the duties attached to a post justify on grounds of privacy or decency the employment of persons of a particular sex.

But in the 1998 Employment Equality Act
6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.
6.2.(a) that one is a woman and the other is a man ('in this Act referred to as “the gender ground”')

The exceptions on the grounds of privacy or decency no longer appear in the 1998 Act.

So we don't even have the toe-hold that FWS had, we can't even seek to have a ruling on 'sex' meaning biological sex in our equality legislation, because it no longer appears there. And 'sex' is no longer a protected characteristic, only gender.

I feel - and that's all it is, a general feeling of unfairness - that there's something profoundly wrong with retrospectively saying that legislation that was clearly about men and women as understood at the time, is now about something else, and I'd love some wonderful Senior Counsel [=KC] to come flying in on a fire-breathing dragon to champion the rights of women, as defined by biology, in Irish law. Flaming sword and shining suit of armour optional

Gosh, I had no idea about that change to Irish discrimination legislation. That does make things harder I think. Plus you have self ID right? I hope you find a heroic gender critical lawyer to help make your way through this.

Mochudubh · 06/07/2025 19:53

Thank the Cosmos for Ben Cooper. Cometh the Hour, Cometh the Man.

Without him, women would be in far worse position today,

I also acknowledge Naomi Cunningham, Akua Reindorf, Noel Kavanagh, Michael Foran, etc, but Ben has been responsible for the early wins that started to turn the tanker, All power to his elbow.

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