Thread by @tribunaltweets

We are back for the afternoon session of For Women Scotland v The Scottish Ministers being heard at the Supreme Court.
"Is a person with a full gender recognition certificate which recognises that their gender is female, a "woman" for the purposes of the Equality Act 2010?"

We expect to begin at 2pm.
Abbreviations
Claimant: FWS/C - For Women Scotland
AO - Aidan O’Neill KC, Barrister
SK - Spencer Keen, Barrister

Respondent: SG/R - Scottish Ministers & the Lord Advocate General
RC - Ruth Crawford, KC, Barrister
LI - Lesley Irvine, Advocate

J - all Judges

Intervenors-Oral
SM - Sex Matters, a UK human rights charity
BC - Ben Cooper, KC, Barrister
DW - David Welsh

EHRC - Equalities & Human Rights Commission
JC - Jason Coppel, KC
ZG - Zoe Gannon

Written AI - Amnesty Int.
SL - Scottish Lesbians, the Lesbian Project and LGB Alliance

GRA - Gender Recognition Act
EA - Equality Act
GRC - Gender Recognition Certificate
LS - legal sex
S - biological sex
FAP - for all purposes

PC – Protected Characteristics
GI - Gender Identity
SSS – Single Sex Services
SSA - Same Sex Attraction
SSE – Single Sex Exceptions
EHRC – Equality and Human Rights Commission
ECHR - European Court of Human Rights
GRPB - Gender Representation on Public Boards “Scotland” Act 2018

The live stream is found … It begins 10:30am, cont'd tomorrow #WhatIsAWoman #SupremeCourt

There are frequent referrals to the GRA sections 9.1 and 9.3:
9General
(1)Where a full gender recognition certificate is issued to a person, the person’s gendersupremecourt.uk/live/court-01.…

9General
(1)Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender,

the person’s sex becomes that of a woman).
(2)Subsection (1) does not affect things done, or events occurring, before the certificate is issued; but it does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is

issued; but it does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is issued (as well as those passed or made afterwards).
(3)Subsection (1) is subject to provision made by this Act or any other enactment

or any subordinate legislation.

The Equality Act Section 212 states:
212 General interpretation

(1)In this Act—

“man” means a male of any age;

“woman” means a female of any age.

AO re disclosures of information. Wouldn't be an offence if made to health professional but doesn't get over s 22 aspect. You still have to find out if there is a GRC.

J Could you make provisions available to court.
AO. Yes. Range of protections for those who have GRCs.

AO But they don't address our point - maternity/pregnancy provisions are to protect women and children who are born. Should not take protections away from some of these people. [refers to case] the specific needs of pregnant women are important, the pregnant man would

not be protected. SG duck and dive around this, saying they would use a different definition here. But Commission says Court below extends protection to those who are male.

Two contradictory definitions of woman within the one act. SG says it should be read in to 212.

OA The EA says means, not includes, a woman of any age. Important change. Means Parliament must have meant something by this.

J Section 92. Does this it mean differently if you say includes or means.

OA Means is more definite term. It includes girls, but doesn't mean

anything else.
J Do you accept that woman includes a girl.
OA 212 female of any age - tightens up the wording. Not a major point.
On to sport. The issue of possibly excluding persons with gender reassignment in sports categories. Read - advantages of a person has as opposed

to persons of other sex. If include GRC holders, natal men will be included among women - this is part of the madness. Competition and safely. Men and women have differences of size, strength etc on average - which is why we have categories in sports events.

AO [Court finding place in bundle] Commission re benefits as result of marital status. Person married to someone of same sex - is one time that shows the Parliament understood that GRC changes one's sex but this is about avoiding unlawful sex discrimination.

If it didn't have the carve out it would discriminate against people in same sex marriages.

J That's a relevant sex change case. One partner in an opposite-sex marriage gets a GRC.

AO On to the 2004 Act. Commission said it considers it unavoidable that Parliament

passed the act to make change, but then says that 9.1 is still important. Parliament says at various points in the act that 9.1 can be disapplied. But if that is the case there is no need for it. Don't need s 19 to tell you re necessary implications.

AO You don't need a provision to say that something has to be disapplied. When you look at other statutes and it produces absurd results then section 9 doesn't apply. It says only apply 9.1 legal fiction if it leads to proper enactment by Parliament,

GRA is held by some as some high constitutional legislation on a par with the Human Rights Act. When GRA says for all purposes, it must mean all purposes for means of that act, and is not anti-discrimination legislation.

J If you're right about 9.3 implication then you can refer to inconsistencies in EA.

AO Yes. GRA is an Act of Parliament and they don't have different statuses any more.
AO On to EU law - (I used to be an EU lawyer). A v West Yorkshire - not a guide to interpretation of EA.

J But they are relevant to background of GRA.
AO These laws predate GRA. Are all about relation to the state - the vertical relationship with individual to state, while EA is about horizontal relationships.
These cases are about fully transitioned transsexuals.

AO Deals with PC of gender reassignment as distinct from sex. We should look at later legislation, rather than the old cases which are about fully transitioned transexuals. This led to gender reassignment being added to protections.

AO Present case is re statutory guidance so it's about how the law now stands, post Brexit, and guidance for the future. EU isn't part of domestic law after 2023. [Refers to case] Lady Hales said until matter resolved by legislation there will be qs re demarcation.

AO and that it will be up to employment tribunals to decide cases. Here, X has done everything possible to present as a women, such a person should have reassigned gender - court applied an appearance test.

Police -whether a male with GRC should carry out intimate searches

on a woman. Employment didn't address this.
J Case was re whether to dismiss rather than alter work duties.
AO Judgement says according to domestic law this person is still a man and cannot search women, and men don't want to be searched by someone who

looks like a woman. But would it be reasonable for women to be searched by this person?
AO People with religious moral etc objections to be searched by this person. Do not think they could reasonably object. Others might object to being searched by a homosexual. Shocking

to think of this - deception regarding the man's sex in a case like this would add to distress to women. (Another case had a man being searched by woman seen as degrading.) Police searches often not truly voluntary.

Sometimes even the best people make mistakes.

[Strip search was a man in front of a woman, not by - my mistake.]
AO My approach will mean that
The rights of women with a GRC to have protections re maternity and their children will continue.
All those with PC of gender reassignment would be able to claim protections.

And would be able to claim PC of sex discrimination.

AO It's on basis of using biological sex that people can have protection on basis of sex orientation and gender reassignment.

It's not a closing down of rights. It's preserving rights of w and people with gender reassignment

Ao It's simple if you stick with men being men, women being women, and sex being sex. A reading which allows for common sense understanding of the Act, allows for protection of people on sexual orientation, maternity and pregnancy. Simple and able to followed by non-lawyers

in the real world day to day. Protects single sex accommodations for women inc prisons, freedom of association for women, hospital wards, women in sport, equal pay for women and men, etc, etc.
GRA is symbolism etc, but these are important. Birth and death certs, marriage,

AO GRA addressed these.
AO I submit appeal should be allowed that sex in EA is always on biological criteria.

Now it is Ben Cooper
BC What is effect of interplay GRA and EA. What would a reading of 9.1 in EA lead to for trans people.

BC Nature of GRA 9.1. 9.1 creates presumption that sex of person with GRC to be treated in law in accordance with their acquired gender. Commission says that threshold for applied disapplication is necessary application. We say that is too high a bar.

BC Did Parliament intend in EA to misapply that presumption. 9.1 is a deeming provision, or like one. Sex in common law means bio sex and it's not poss to change sex. Limits of deeming provision are to be ascertained as to purpose and to avoid unjust or anomalous results.

BC Subject to any provision made in any other enactment of legislation - so will need to take into account the further legislation and any absurd result that might arise.
[Quotes cases] S 9.1 is not a fundamental constitutional right and will be relevant to the details of

each case. Even if test were higher, that would still be up against the results being eg unfair/absurd.
BC Goodwin shows the situation the GRA was trying to address. Lack of legal recognition of gender reassignment resulting in negative effect on the applicant.

BC Purpose of GRA is to provide legal recognition for trans individuals and their rights and treatment which produces discordance for their social position.
J That is broader than the vertical.
BC Agree
J One argument against you is GRA was enacted in knowledge of earlier acts.

BC I'll deal with that now.
No doubt that sex in Sex Discrimination Act meant biological sex. Parliament didn't say that sex includes GI, but addressed it by way of separate PCs. Parliament seems to have thought that 9.1 would affect SDA

BC EA is consolidating and reforming statute, and reliance should therefore be on this statute. EA rebalanced rights of people with different characteristics. It no longer treats people with GRC in a different way. It reverted to a purer approach

BC Parliament replaced the SDA and chose to regulate relationship between trans people and people with protected sex characteristics.
BC [eg Goodwin] raise qs of demarcation and balancing of rights. And deal with full post-operative transexuals. IN GRA Parliament went further

and set no criteria for physiological change.

J What does it mean then to be living as a woman and intend to until you die?
BC Good q. Not my area of expertise. Someone obtaining paperwork for being a women.
J Getting the cert can't be a criterion. if you want to get the cert

you get it. That can't be what Parliament meant.
BC I think that's all it means in practice - obtain paperwork in that gender and presenting in a way that they think fit that gender.
J That goes with AO's fear that obtaining a GRC can be a problem towards women.

BC This is no specific need for anything to be done to gain a GRC
J What about treatment being required or planned, etc, in order to get a GRC.
BC You don't even have to have had treatment started or prescribed. I'm told that p18 of bundle has a doc that supports what I was

saying about what living as a women does or doesn't mean. This is the Scottish Government guidance.

AO This is ref to original guidance in Scottish government which was struck down in the earlier case.
J So that is agreed. Person doesn't have to look or behave in any

J way. They are all to do with documentation, aren't they.
BC A broader engagement of rights of different group which may conflict. Rights of bio women conflict with those of trans people. So where do we look for the authoritative balancing of those rights.

BC GRA doesn't necessarily take precedence into how rights are balanced.
Purposes. First is to prevent individual less favourable treatment cos of PCs. Primarily through discrimination. Secondly to advance equality of groups with disadvantages and needs by group sharing PC

BC 3 provisions. Prohibition on indirect discrimination, to advance equality eg public sector duty, and Parliament balancing rights and protection. It's the characteristics which are perceived by others that matter, not a confidential cert unless that's widely known.

BC Groups can be discrim against by shared characteristics.
J What about characteristic like sex orientation which might not be readily perceived.
BC Would be perception of person discriminating that would be matter. For indirect discrimination it's the PC that the person has.

BC Important that relevant groups can be identified and analysed. Which interpretation
- better ids the characteristics why people are discriminated against
- helps people who need to follow EA to id these groups.
So need to spell out logical consequences of 9.1 reading

BC No physiological changes or changes of attributes or behaviour needed for a gender reassignment. Sex and gender are being conflated. You could say you're not changing sex but reassigning it, but it still doesn't support the SG interpretation.

BC Proportion of people who id as trans who have GRC is v small. Doesn't require any physiological or presentation change, so no practical way of telling difference between so with GRC and so who is trans without GRC and they will probably retain features which readily id them

BC in their birth sex. We say in our submissions that the group of people who share the characteristic of women on 9.1 reading, inc females, some females who id as male but no GRC and would inc bio males with PC of gender reassignment with GRC

Sorry - feed dropped.
BC Idea that Parliament wanted this regulated by reference to this complicated groups would be unsustainable.
J But your position is that natal women would remain women even with surgery and a GRC

J/BC back and forth re male/female
J They have protections for gender reassignment under EA
BC Yes. Regulations amend provisions of SDA. Discrimination on grounds of gender reassignment is there.
J Definition is different
BC Yes, but EA broadened this

BC Re J's q c natal man who ids as a woman with GRC. Our interpretation would have sex as male and protection under gender reassignment. Other side would have sex of female and protection of gender reassignment for purpose of EA.
J Would they have protections under other act

J if that didn't impact on s 9 women. But you say you treat it as bio sex.
BC Yes
What disadvantage is there to individual rights under a bio reading of sex.
Direct discrimination - no reason for s.9.1 reading. cf Sanderson case, not individual only needs plead their

BC circumstance. A TW presenting fully as a woman doesn't need to out selves as being trans, they can apply as a woman.
Same for indirect discrimination. Where bio woman are disadvantaged, then anyone who suffers that, whether they are that class or not, is covered by provision

J eg Say everyone doing this job must be more than five foot 2. Discrimates against women, so
BC no evidence that transmit are shorter than average. Where a TW is put at same disadvantage as women cos not tall enough..
J Natal male presenting as woman,

J indistinguishable...
BC another eg. Working part time may not be accepted. Places women at a disadvantage. If TW who takes similar level of home responsibilities outside of work can also claim discrimination.

BC On core provisions no need for 9.1 reading.
In context of public sector equality duty - if group of women inc natal men with GRC there is q of access to spaces where dignity and privacy matter, it impacts on groups differently.

J appointing natal males to boards for equal woman/men doesn't address that inequality.
BC Yes. In relation to various exceptions - details in subs. Sex and gender reassignment both have a role to play. 9.1 - single sex service area. If service not provided to TW with GRC

won't be sex discrimination but gender reassignment discrimination. Need to think about both types of discrimination to decide which section you are under. No need for s9 interpretation. Arrange single sex service under bio sex with a gender reassignment exception.

BC There are set of exceptions which don't have both types - services re religion, associations, charities, and higher education institutions. In all of these cases there is no possibility of excluding people with gender reassignments. There are sex exclusions.

BC Won't go into detail but re 9.1 the logical interpretation would be a TW with GRC becomes lesbian with consequences for lesbians.
[The court has written submissions.]
J Thank you. Have found lesbians' submissions v helpful.
J Will adjourn for today. Until 10.30 tomorrow.

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