GLP v EHRC judgement - Thread 2

[Another2Cats]

This is a continuation thread from here:

https://www.mumsnet.com/talk/womens_rights/5489699-glp-v-ehrc-judgement-is-coming-tomorrow?

GLP are appealing (well, not very, but you know what I mean 😉)

https://goodlawproject.org/ehrc-guidance-were-launching-our-appeal-on-the-high-courts-decision/

And, obviously, they're grifting:

Good Law Project, alongside three individual claimants, are appealing the decision of the High Court on the lawfulness of the Equality and Human Rights Commission’s interim guidance.

The three claimants have now applied for permission to appeal from the High Court. However, they are likely to need permission from the Court of Appeal.

We need your support to keep fighting. The EHRC is claiming costs of almost £300,000, and we have to pay our lawyers too. They think a big bill is going to stop us, because we’re not backed by billionaires or the government. But they’re wrong. Trans rights are human rights – and we will defend them.

As mentioned previously their crowdfunder isn't doing the numbers they used to do. They've only raised c £33,000 so far. Nothing like enough if their appeal is allowed.

It’s not about being right, it’s about enough people believing their version.

They are appalling too 🤣

I was tired. I meant "Sex realist."

They appear to have instructed Leigh Day, probably on the back of all the criticism. That will not come cheap. £30k is not going to to touch the sides of Leigh day and then what appears to be a giant counsel team.

They had £4.2m in the bank this time last year, so plenty of cash to keep doing this for a few more years, even if their crowdfunding dried up.

Excellent, more helpful precedent being set at a higher level!

The fact they are appealing against the refusal of standing is ludicrous. What a waste of money.

Interesting. I have a contact involved in ‘the scene’ in London and suggested to them it was all a big old grift. Got no pushback at all. Maybe word’s got round.

The grounds that they are putting forward (as far as I can make them out) are:

1 The court was wrong to say that the statement "If trans women are permitted to use a single-sex female lavatory all biological males must be permitted to use that lavatory" is legally correct as the use of the word "must" implies that it will always be the case.

However, the court said in the judgment at [59]-[61] that it will depend on the circumstances.

GLP are saying that you can't have it both ways. A statement that uses the word "must", must indeed always apply, not just depending on the circumstances.

[to my mind, they may have an argument here]

They also go on to make the same claim that the WI did, that this is about "living as women" rather than being an actual man or woman and so a non trans-identifying man can lawfully be excluded.

[I'll be interested to see where that argument goes, as this was what the WI argued against my DH]

They also argue that the court failed to properly consider their argument that providing trans-inclusive toilets was positive action under Section 158 Equality Act.

[I don't think that will likely go anywhere]

Further, the update didn't fully address the risk of gender reassignment discrimination.

They go into a lot of detailed argument about why excluding trans people form toilets is both direct and indirect gender discrimination.

GLP argue, among other things, that providing mixed-sex facilities would be outing to trans people and thus indirect discrimination. They also argue that the correct comparator for a trans-identifying man should still be a woman.

.

2 "Failure properly to construe the Interim Update in accordance with its natural meaning"

They seem to argue that the Interim Update assumed that they were talking to an employer or service provider that had at least some nodding acquaintance with discriminaiton law or they have legal advisors.

They argue that this should not be assumed and that there is a "natural and ordinary meaning" to the words.

They say, that an ordinary employer or service provider would read the Update and consequently may require a trans person to use the facilities designated for their “biological sex” if they do not have any mixed-sex facilities available.

They then argue that para [69] of the judgment is wrong and that:

"It follows that, where for practical reasons it is only possible to provide toilets designated for men and women, trans people may be required to use the toilets designated for their sex at birth. The Judgment does not engage anywhere with the reality that a proportion of duty bearers will not have the resources or facilities to offer additional spaces."

Which would be a bad thing.

They also argue that what was said about toilets in the Workplace Regs in the judgment at [34] is also not correct.
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3 "Erroneous construction of the 1992 Workplace Regulations"

Again, they are repeating the argument from the original case that this can be done on a "trans-inclusive basis" and the court was wrong to say otherwise.

They have a very long argument as to why they are correct and the court isn't.
.

4 "Erroneous approach to Article 8 ECHR"

They then go on to a very long argument as to why there would be a breach of Article 8 rights.
.

Personally, I don't think most of these will stand up to scrutiny (but there again, what do I know about anything?)

Gah, what exactly is the criteria for a man 'living as a woman'?

One that is not insulting to women (long hair, long nails, crying, bad at parking, knitting) which would be something any man could do if he felt like it in the moment?

And who exactly is going to check this criteria and issue a pass to said man to enter women's spaces?

And STILL wtaf would those men intend to provide for the women who need single sex man-free spaces regardless of how the man feels, thinks, lives or anything else about him. Because HE IS NOT THE INTENDED USER OF THE BLOODY SPACE BEING A MAN.

I don't know how Naomi does it. I'd have leapt over a desk and started slapping legs before now.

I’m curious to see what PtD makes of the grounds for appeal. If @Another2Cats has accurately summarized them I don’t think they’ll stand up. But PtD is legally qualified and no fan of HLP.

Edited to add: he doesn’t appear to think very highly of them.

GLP are saying that you can't have it both ways. A statement that uses the word "must", must indeed always apply, not just depending on the circumstances.

[to my mind, they may have an argument here]

Does it really matter if the EHRC change the wording to say there may be grounds for a claim depending on the circumstances? The court clearly stated that this would be an argument about mixed sex facilities, not access to singles sex facilities.

GLP argue, among other things, that providing mixed-sex facilities would be outing to trans people and thus indirect discrimination.

You could say that about any single sex provision/ service/exception to the GRA.

What happens if you mysteriously don't inherit the family title?

I think that if they push this argument too far they risk the courts just confirming that there is no right to privacy re: sex.

They also argue that the correct comparator for a trans-identifying man should still be a woman.

Isn't that stretching things a bit given that higher courts have found otherwise?

They then go on to a very long argument as to why there would be a breach of Article 8 rights.

Have said it before, but I think their reliance on Article 8 is a house of cards that they they risk knocking over.

I think that if they push this argument too far they risk the courts just confirming that there is no right to privacy re: sex.

I strongly hope this is what the courts do confirm. How can an employer meet their statutory requirement for single sex toilets unless they know what sex the people using them are? The counter requirement that the workplace regulations do not refer to the same meaning of men and women as the EA2010 was rejected by the judge who said the same reasoning that applied to the EA carries over to the WR. PtD points out that the grounds of appeal don’t address this.

The EHRC guidance CANNOT contradict the law
as clarified in the Supreme Court ruling.

Jolly On can spaff all the money he likes
the only way the wording of the law can be changed is by legislation

and the McCloud ECHR case will fail because he lives in Ireland so lacks standing.

Sorry, I'm not on Reddit. Could you provide a link?

"They also argue that the correct comparator for a trans-identifying man should still be a woman."

The correct comparator for a trans-identifying man has never been a woman. The Supreme Court judgment makes that quite clear. What they are arguing for is thew continuation of Stonewall's interpretation.

Have said it before, but I think their reliance on Article 8 is a house of cards that they they risk knocking over.

Agree. The thing with A8 is that it is very much a catch all of "I haven't been allowed to do what I want to do by the state".

The problem is that A8 (a) has a large margin of appreciation and (b) falls apart the moment that you come up against the rights of others, particularly women.

I also don't particularly understand the argument re being "outed". I am "outed" as a brunette every day. Why is gender identity such a private thing that you should be able to simultaneously keep entirely private, but also expect others to accommodate.

It is why ZP's suggestion that we just "change the law" always makes me laugh. To what? Other than to make every space mixed sex (in the way that a TRA would understand it) there is no way of defining a trans person sufficiently to ensure certainty of the law.

Apropos of not very much, this is a curious statement from the GLP:

We think it failed properly to recognise the nature and scope of the positive obligations imposed by Article 8 of the European Convention on Human Rights to protect the rights of trans and intersex people, and to avoid relegating them to “an intermediate zone as not quite one gender or the other”.

What does the GLP claim that “intersex” people are, if not “not quite one gender or the other”? Is not that intermediate status rather the point of claiming to be “intersex”?

This is the page:

https://www.reddit.com/r/transgenderUK/comments/1rciw6u/ehrc_guidance_were_launching_our_appeal_on_the/

They are quite mad (not PTD). The idea that transwomen can breastfeed, and therefore fall within the definition of a nursing woman within the WR is grim. The suggestion that this would ever find favour with the Court of Appeal is equally fantastical.

That breast feeding comment is ridiculous Trans women are entirely capable of breastfeeding, it’s essentially no different to a cis woman who needs lactation to be induced for whatever reason. So a “biological” sex reading falls apart.

TiM's who are "chest feeding" are doing it for a sexual fetish, women are doing it to nourish a baby and keep it alive.......

As I’ve pointed out several times there are also the Management of Health and Safety At Work Regulations 1999 that refer to “new and expectant mothers” as “women of childbearing age” et.al, providing further pregnancy protections. Those share the same head legislation as the WR 1992, vis. The Health and Safety at Work Act. It makes no more sense to have different meanings of men and women in parallel regulations deriving their authority from the same Act of Parliament than it would for different sections of the same Act, a possibility the SC thouroughly rejected.

Not sure about intersex but its definitely the point of being gender fluid or non-binary.

To suggest that to be non-binary is to be 'relegated' sounds rather offensive...

If you listen carefully that distant thumping noise is a thousand Enbies going involuntarily under the transbus.