What I find remarkable about the letter is that, for a protest against a ruling by the highest sovereign court in the land, it contains no valid legal reasoning that I can discern:
- Gender identity is covered as an aspect of private life under Article 8 of the Convention. This protection entails an obligation to provide for legal gender recognition, in order to avoid the unsatisfactory situation in which trans people live in an “intermediate zone [as] not quite one gender or the other” (Christine Goodwin v. the United Kingdom).
Actually gender is not. Article 8 is simply a statement on privacy. What is covered is one's sex, which has been interpreted as a matter of privacy, namely that the individual may choose not to disclose one's sex. This right, however, is provisional not absolute, and in particular it is subject to: "national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".
Not only is disclosure of sex warranted for single sex spaces and services due to a number of those exceptions, but the SC explicitly considered the weighting factors of whether sex disclosure was proportional, contradicting the assertion that "This is particularly important as the Supreme Court did not engage with these human rights issues."
- The Court has further emphasised the importance of the impact on trans people of a discordance between their social reality and the law, with the coherence of the administrative and legal practices within the domestic system being an important factor in assessing whether there has been a violation of Article 8
Again, this is just a restatement of privacy canard.
- It should be ensured that steps taken towards implementing the Supreme Court judgment avoid a situation where a person’s legal gender recognition is voided of practical meaning, to the extent that it leaves trans people in an unacceptable “intermediate zone”
Setting aside the fact that the vast majority of trans people do not possess a GRC, There is no legal justification for this statement. In addition the SC judge leaves no ambiguity. The GRC is valid for situations where it expedites the process for obtaining courtesy of address for one's gender and has no validity on whether one has access to single sex services or spaces. In no sense is the trans person in an intermediate zone. But, see below for the veiled meaning of 'inclusion'.
- Where possible, inconsistencies within the domestic system, particularly with regard to the interplay between key legal frameworks such as the Equality Act and the Gender Recognition Act, which could lead to legal uncertainty or to dissonance between the lived experiences of trans people and their treatment in law, should be avoided.
avoiding "inconsistencies within the domestic system" goes without saying for any legal code, and is precisely what the SC ruling resolved. Of course O’Flahery can't be bothered to justify his statement.
- As I note in my end-of-visit statement, I observe a tendency to see the human rights of different groups as a zero-sum game. This has contributed to narratives which build on prejudice against trans people and portray upholding their human rights as a de facto threat to the rights of others. Such a zero-sum approach risks certain inferences being drawn from the UK Supreme Court judgment that could lead to widespread exclusion of trans people from many public spaces. This, in turn, may severely infringe on their ability to participate fully and equally in society.This is particularly the case, as discussions about how access to services and facilities will have to be regulated following the judgment have tended towards the exclusion of trans people. It would therefore be crucial for all stakeholders to receive clear guidance on how inclusion of trans people can be achieved across all areas, and how exclusion can be minimised to situations in which this would be strictly necessary and proportionate, in line with well-established human rights principles. In reality, tensions between the human rights of different groups in this context are likely to be exceptional in nature, and resolvable through nuanced, reasonable and balanced accommodations. This would also be in line with the approaches taken by various bodies of the Council of Europe (such as the Committee on the Prevention of Torture (CPT) or the Group of Experts on Violence Against Women (GREVIO)), which recognise the particular vulnerability of trans people, and which begin from the position of their inclusion within spaces according to their gender identity – with exceptions made on a case-by-case basis as necessary.
Most of this is simply boiler plate bromide without legal reasoning - rights are not a pie! exclusion! But there is an issue underlying this that I consider valid which is this: trans individuals who've undergone significant, voluntary body modification can be excluded from their appropriate sexed service on the grounds that their presentation would be distressing. IMO this should be rectified in law by 1. enacting a process to verify biological sex and 2. by mandating that trans people, irrespective of their presentation, should have access to single sex services of their natal sex. But of course that is so completely unacceptable to TRAs that the problem can only be obliquely referred to, as though the only solution to 'inclusion' is access to opposite sex services and spaces.
- Another area of concern is that blanket practices or policies on access to gender-segregated spaces could be put in place, which would require trans people to habitually “out” themselves publicly when accessing services or facilities, either directly (by being asked about their sex assigned at birth) or indirectly (by having to use services or facilities in such a way that it becomes apparent they are trans). Forced or non-consensual disclosure of private data falls within the sphere of private life under Article 8 of the Convention (see Bazhenov and Others v. Russia in relation to disclosure of sexual orientation). While this right is not absolute and can be subject to limitations in the interests of a number of grounds, this may only be done in accordance with the law, when necessary in a democratic society and proportionate to the aim sought. Disclosure requirements may have significant implications not only for trans people, but for others too, especially for those whose gender expression does not conform to their gender identity. Beyond privacy concerns, being forced to disclose sex assigned at birth may also significantly increase people’s vulnerability to harassment, abuse and even violence
This is just a recapitulation of the highly conditional Article 8 rights mentioned above - accessing a single sex service in and of itself justifies the disclosure of one's sex as setting up such a service must itself be justified.
This letter reads as a determined effort to convince the UK to abandon the ECHR entirely and it mystifies me why O’Flahery undertakes it in such a cavalier fashion.
The letter
https://rm.coe.int/letter-to-parliament-and-house-of-commons-of-te-united-kingdom-by-mich/488028ddd7