FWS may have to go to court again

[impossibletoday]

https://www.thetimes.com/article/948af8ac-30b1-4bf3-acaa-11b3e49cbc83?shareToken=e11dca08b0ef51902ba205e3e0b9fdf6

FWS said a Scottish human rights bill could become the latest example of the Scottish government attempting to bypass the Supreme Court ruling. The group warned that it was “almost guaranteed to be another law that will end up in the courts”.
A FWS spokeswoman said: “Putting gender identity into Scots law is hugely problematic. The Equality Act recognises the right not to believe in the concept of gender identity yet the Scottish government plans to legislate for a compulsory belief in it and for public bodies to take it into account.

“This is part of their thinking to overwrite the Equality Act by appealing to the greater power of ‘human rights’ which are what they want them to be, as opposed to what they actually are, to get around our Supreme Court ruling. It was the same argument the Scottish government made in our prisons case, and lost.”

She added: “It’s theoretically possible but in typical Scottish government fashion, it’s almost guaranteed to be another law that will end up in the courts.”
However, Michael Foran, associate professor of law and a fellow of Keble College, Oxford, said the proposed law “seems to fall squarely within the competence of the Scottish parliament”.
He added: “If the proposal is merely to introduce a new duty to consider things such as sexual orientation and gender identity in the design and delivery of services, that alone is not in conflict with the Supreme Court decision, nor would it meet the tests to trigger the use of another s35 order, in my view.”
A Scottish human rights bill has long been discussed at Holyrood. Alan Miller, a lawyer, was the architect of one of the first iterations under Nicola Sturgeon’s leadership.

FFS do ScotGov have nothing else that needs doing in Scotland?? It's starting to look like a Make-Work project, because they're trying to justify their salaries and the fact that they have to show up for work to do...something.

What is it about men like Swinney pushing this?
Why does he feel compelled?
As a generally easy going individual who really resists labelling people as this or that, I'm finding now more and more I'm coming to the worst conclusions about the likes of Swinney and his clan.

Oh yes ! Education , NHS , housing shortages …….etc etc

I know someone who has some quite deep knowledge of the SNP, and the tribal Scottish Labour Party when it was in its pomp.
Both parties are ostensibly on the left, saying they want to achieve the same things.
But the SNP is in a pure echo chamber where intersectional causes clang around the sides of the chamber the loudest.
They have a virtual cartel on power, even Sturgeon's fall from grace and Murrell's fraud has no effect on their electability.
Compare this shower to that great generation of Salmond, Dewar, Brown etc.
But they can't achieve the thing on the side of their tin, Scottish Independence.
And even their independent stewardship of the NHS, water etc is poor by any measure.
Their COVID outcomes were poor.
So, all they have agency on, all they can say that they're getting things moving on, is stuff like this.
And because trans is the social justice movement of the age, they're deluding themselves they're on the right side of history.
As per Article 20, they need to be taken to court, and have their arses handed to them.
Will be exquisite for FWS to add this to the SC ruling.
Heads will.explode everywhere on the liberal left.

And... the SNP - weren't they supposed to be working on independence? At this rate, they're going to spend the next decade throwing away taxpayers' money in court!

Yes, "conclusions" about Swinney and his mob are looking decidedly...shadowy.

I'd be really disturbed by any legislation that makes gender identity something that any entity has to take into account. What's the proposed justification for this (we can all explain why sex is a 'protected characteristic')? It's completely mad to organise any aspect of society on the basis of an identity that is personal, private (no way for a third party to inspect it; no way to verify a person's self-reported gender identity) and temporally unstable (sometimes varying multiple times over the course of a 24h period).

Why would anyone need to know someone's gender identity?

Even if you did know someone's gender identity whatever that is, why should anyone care?

The ideologues keep conflating gender identity as a formal belief in one's identity, with religion.
Once someone declares their religion, then even if you don't believe in their god, you should respect their choice, act in a non discriminatory way.
However, that comparison is wrong.
It's more like their superstition, star sign etc. Swinney's mad new law would equate to a Piscean or Libran imposing their belief on you, you could not express your dissent.
Even worse, a protected star sign identity system would at worst mean penalties for taking the piss out of Mystic Meg, or punishment for mocking astrology.
But protected gender identity means doors are opened, like women's toilets to special men, and the merest dissent on this to the special men, or even overheard in the staff dining room etc, on the floor, would have real world ramifications.
Just more ultra authoritarianism laced with this creepy impression of Sturgeon happy with male rapists in women's jails, and Swinney just obsessive as he cannot leave this alone.

Drugs deaths, violence in schools, rape ......

It has as much relevance to anything as your starsign does

For sure. But am I alone in being bit concerned about Michael Foran's comment?

I see the Scottish government falling foul of section 33 (out with the legislative power of the Scottish government) the same way the rights of the child did. Not just a section 35 (within their power but messes with UK law) and it will face multiple legal challenges under existing human rights laws especially as it will require people to consider gender identity that they haven't defined.
The problem that the snp will have is they must define it any law the requires something to be considered must define that thing and then we get to put gender identity ideology to the grainger test which it will fail.

Its not that I specifically disagree with Michael Foran so much as I think that hes giving the snp the benefit of doubt that they will write a competent law, I however having lived through far to many snp "bills" to be so charitable.

The main difference with respecting people's religions is that there's no (other) mainstream religion that contradicts objective legal facts about a person. For example there's no religion that says a 40yo must be treated like a 4yo. Or no religion that says you can identify into having another country's citizenship.

When people say "protect trans people from discrimination" we're never sure if they mean the original meaning of discrimination eg "give them equal consideration in recruitment" (reasonable) or if they mean "treat them as if what they claim to be true is true", eg put male people in women's prisons (unreasonable).

No other religions ask for that.

It sounds like this new bill is aiming for the latter.

The input from Michael Foran is concerning but I'm not sure what he's talking about
"He added: “If the proposal is merely to introduce a new duty to consider things such as sexual orientation and gender identity in the design and delivery of services, that alone is not in conflict with the Supreme Court decision, nor would it meet the tests to trigger the use of another s35 order, in my view.”
A Scottish human rights bill has long been discussed at Holyrood. Alan Miller, a lawyer, was the architect of one of the first iterations under Nicola Sturgeon’s leadership."

If it's a bill then it's a law, so him referring to "merely to introduce a new duty" doesn't seem to fit.

Well, any new duty would need to be introduced via a new law.

I also don't see how this would undermine the Supreme Court judgment, but it sounds like a stupid proposal to create more bureaucracy without actually improving anything for citizens.

I thought duties could be introduced via policies and procedures. I guess I'm just getting hung up on the words, but you're right it's just another bureaucratic burden on companies and organisations in Scotland, at least those that are not funded by the SNP, (if there are any of those).
It will have an effect on the country's productivity, which is already zero, along with the rest of the UK. It'll effect their chances of attracting investors, and creating growth, which seems like a incredibly stupid decision for a government to make.
It's almost as if the Scottish Nationalist Party wants to destroy Scotland.

"Merely to introduce a new duty to consider..."

This would be fine if followed by something that didn't objectively contradict another legal fact/category.

For example if that sentence was followed by "...noise sensitivity" or "...allergies" or "...aversion to dogs" or something then yeah, no problem, you're just adding more things that service providers need to provide for.

But if that sentence is followed by "...claims of being in the opposite to one's legal category" then that has a real impact on that legal category. Where that is age or some other legal category.

@moto748e
It depends how 'gender identity' is construed. The SC ruling should mean single-sex provision is unaffected, but the 'duty to consider' might create an obligation to consider providing third spaces, where that's feasible and proportionate. One of the weaknesses of the public sector equality duty is that it doesn't require all the considering to be followed by much action.

There are two areas where - and I've no legal expertise whatsoever - I'd maybe be worried about off the top of my head. One is that it might open the door to teaching about GI. Maybe that would be open to challenge (need to provide a representative overview of what is a controversial concept)? I have no idea whether schools have a legal obligation not to indoctrinate - it seems quite unlikely that they do

Pronouns might be vulnerable, given the situation at the moment is unclear (my understanding is that using the correct sex pronouns might be considered harassment or bullying in some circumstances). I'd be worried about that. Would like gender identity ideologues to be told they have to coin novel words for their novel concept (and good luck persuading anyone to change current practice - although singular pronouns for general cases and cases where sex is unknown would be handy).

I wish I understood why the SNP and Greens are so obsessed with gender identity and trans “ rights” given the multitude of serious issues in this country .
Did they learn nothing from the Named Person fiasco ?

For most people who feel they have a gender identity, that identity is the same as their legal and biological sex. I think GI here is intended to mean gender; so it would consider TW to be W for the purposes of this new duty, but is not intended to be directed purely at gender reassignment/trans people.

Still annoying obviously though.

Wherever this ends up going, I think there will be too many people all over the legal aspects of it, for it to be too much of a danger to women's legal rights. What I'm concerned about is the embedding in practice of faux-legal terminology and the misunderstandings that can take hold and be used for other purposes.

"Be kind" and "inclusion" and "personal pronouns" started out this way, and became mantras that a lot of people ended up thinking actually had legal basis. An entire generation of children has been indoctrinated into these concepts, through activist infiltration of schools.

As the Dentons document hints, it doesn't have to become law if everyone simply believes that it is the law. If that happens, the only way to root it out again is court action. Another generation of court action.

I hope I'm wrong about this, and the SNP are simply using this to make themselves different to Westminster, but we must be watchful. Any attempt to create new law, even unsuccessfully, plants the seeds for something else. It might be the Something Else that activists are actually aiming for. It's a useful pivot point.

Thanks for the link; I found an archive version of the article for the thread 👍

https://archive.is/PsyqY

That’s after all what happened and why FWS challenged back in 2018 in the first place, an attempt in Scotland to bring in a law which defined woman as self identified, therefore in conflict with the EA 2010.