Thread by @RadFemLawyer

Gearing up to watch @publiclawprojct talk on Gender Recognition cases as part of PLP's (fab) week-long Equality Act bumper special. Headed up by barristers Sarah Hannett (Matrix) and Claire McCann (Cloisters).
I will try to live tweet along with hashtag #GenderRecEA10YearsOn

Overview of the domestic law framework first - that is the GRA 2004, EA 2010, HRA 1998 (art 8 and 14). "Worth emphasising that the take-up of GRCs is pretty modest" says SH. #GenderRecEA10YearsOn

Overview of case of Carpenter [2015] EWHC 464 (Admin).

No requirement of treatment (surgical or medical) but any treatment undertaken must be evidenced by a doctor. #GenderRecEA10YearsOn

(More info here: familylawhub.co.uk/default.aspx?i…)

(Carpenter decision: Applicn under Part 18 of the Family Procedural Rules 2010 for an order that s3(3) of the Gender Recognition Act 2004 is incompatible with the rights in the European Convention of Human Rights as enshrined in the HRA 1998 in that an applicant for a GRC ...

... who had undergone, or planned to undergo, treatment to modify sexual characteristics had to provide a medical report giving details of such treatment. Application was dismissed.)

Gender reassignment is a protected characteristic, but there are exceptions:
- Sport (s.195)
- Single sex and separate sex services (Part 7, Sched 3)
- Communal accommodation (Sched 23)
- Occupational requirement (Part 1, Sched 9)

On proportionality, SH says "you can [exclude] as long as you are in one of these categories, and as long as it is a proportionate means of achieving a legitimate aim".

V interesting overview of Art 8 cases:
- Goodwin (2002)
- Hämäläinen (2014)
- AP, Garçon and Nicot v France (2017)
- SV v Italy (2018)
SH: "Recognition is an absolute requirement, but the *means by which that is recognised* member states are given a wide margin of appreciation."

Perfectly ok for Article 8 purposes to require medical evidence of gender dysphoria.

Relatively small number of Article 14 cases in Strasbourg. But see PV v Spain (2010) where restrictions were placed on contact with children of trans father. Trans status accepted to be an "other status" for purpose of Art 14. No breach of Art 14/8 though in this case.

Restricting contact with children on basis of trans status likely to interfere with Art 14.

See M (Children), Re [2017] EWCA Civ 2164

(More info see familylawweek.co.uk/site.aspx?i=ed…)

#GenderRecEA10YearsOn

Now onto recognising non-binary statuses and rights.

First recognition of "non-binary" (though not in these terms) was arguably in P v S (C-13/94) [1994]

"in addition to the man/woman dichotomy, there is a range of characteristics, behaviour and roles shared by men and women..

...so that sex itself ought rather to be thought of as a continuum".

Read case here:
eur-lex.europa.eu/legal-content/…

#GenderRecEA10YearsOn

CM says concept of transgender includes far more now, including non-binary and agendered identies.

Post P v S - does this mean that wider trans statuses / expressions are protected in law?

"The answer is both yes and no depending on the context".

#GenderRecEA10YearsOn

CM's view is that whether or not there is legal protection of non-binary status depends on which legislation you are looking at:

GRA 2004 - no
EqA 2010 - maybe
HRA 1998 - yes

#GenderRecEA10YearsOn

Looking at the Equality Act (section 7), which defines "gender reassignment", this includes "proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attribs of sex"

This makes gender reassignment a "personal rather than a physical process".

Does section 7 apply to a non binary identity? CM says we know people use NB in an inclusive way. But a lot of the time NB people are content to retain their attributes of sex.

#GenderRecEA10YearsOn

CM does NOT think EA protects those with non binary identities unless they are *perceived* as having the protected characteristic of gender reassignment.

(For more info on "discrimination by perception" see explanatory notes to s13 EqA, Coleman v Attridge Law (C-303/06) [2008])

CM explains how the Women and Equalities Committee had proposed looking into adding "gender identity" and an amendment to the EqA to include NB identities in 2016. (See WEC recommendation 18). #GenderRecEA10YearsOn

But on to Article 14 - trans status comes under the meaning of "other status". No decision has said (yet) that Art 14 protects the right to identify as non-gendered/non-binary. Which leads to case of Elan-Cane:

blackstonechambers.com/news/r-christi…

The Court of Appeal in Elan-Cane ruled that the Govt did not have a positive obligation under Article 8 ECHR to provide unspecified sex/gender “X” passports (which are permitted under the relevant international standards and provided by a number of other countries worldwide).

The CoA also dismissed the Appellant’s claim that the UK’s current passport policy constituted unlawful discrimination contrary to Article 14 ECHR or was irrational or otherwise unlawful on conventional public law grounds.

BUT...

The CoA did recognise that the right to respect for an individual’s private life guaranteed by Art 8 includes respect for the fundamental identity of non-gendered and non-binary people and dismissed the SSHD’s Cross-Appeal that Article 8 was not engaged on the facts of the case.

Now onto @MForstater and @WeAreFairCop cases....

CM summarises findings:
Mackareth - his non religious beliefs did not relate to a weighty and substantial aspect of human life and behaviour or attain a certain level of cogency, seriousness, cohesion and importance.
Mac and Forstater - beliefs incompatible w rights of others.

CM: "does this cause a problem under Article 10?"

Says EJ Tayler gave "full regard" to Ms F's right to freedom of expression, but held it was legitimate to exclude her belief from the ambit of the EqA.

I'm not sure @MForstater and her legal team agrees!

Onto Miller, summarises that Humberside Police acted disproportionately in their response to a complaint about Mr M's expression of 'gender critical' beliefs on social media.

CM says "the Judge appeared to take a side on the GC debate without having to".

SH now talking about family law and trans parents, starting with Re M (Children) (2018) which had a simple point - you cannot discriminate against parents in contact decisions just because of their trans status. Likely to be a breach of Art 14 taken w Art 8. #GenderRecEA10YearsOn

Birth certificate cases confirm "child will always have a mother". #GenderRecEA10YearsOn

Caselaw: JK [2016] (children born pre GRC), McConnell [2020] (children born after) (no breaches of Art 8/14)

Note that Freddie McConnell's case (the trans dad case) is awaiting permission to appeal to the Supreme Court.

See article post April 2020 decision here: theguardian.com/society/2020/a…
CoA decision here: judiciary.uk/wp-content/upl…

"There is no consensus amongst member states about this issue."

So will be interesting to see if there is any further caselaw on this... watch this space for case in Germany on this point...

SH speaks about P [2019] EWHC 3105 (Fam):

FD held that it did not have the power to make the declaration sought as at the date of the marriage the applicant had not obtained a GRC, in the absence of which, under domestic law, her legal sex was and always had been 'female'.

Upcoming JR challenges:

- from a female (non-trans) woman prisoner (R (FDJ) v SSJ) coming up in October 2020 who is placed alongside high risk trans women with GRCs in the E-wing in HMP Downview.
- Tavistock use of puberty blockers (also in October 2020)

Pending Strasbourg cases:

- OH and GH v Germany (identical facts to McConnell) (findings of German HC were v similar to CoA here)
- AD v AK v Georgia (picks up from where sterilisation cases left off, relates to Art 3)

#GenderRecEA10YearsOn

CM notes the delay to the GRA reform outcome. Liz Truss indicating to outline proposals to GRA reform in the Summer. CM says that it was "odd" that there were any proposed changes now being mooted to the EqA, which is causing concern for trans activists.

SH notes that the case of Cornerstone v Ofsted [2020] raises useful statements of principle about exemptions (which may be helpful in single sex cases).

See @MccolganAileen's piece on it here:

equalitylawblog.com/2020/07/14/r-c…

On whether the speakers agree with @stonewalluk whether there is "no clash of rights" in this issue, they answer effectively that this is not quite right! It depends on the context, as the case law shows. SH emphasises how courts will balance rights and look at proportionality.

SH comments it will be very interesting to see what happens in the schools context (I agree!) when it comes to teaching about transgender rights in the context of sex and relationship education.

That was super interesting! Particularly the parts on human rights law, which are less well understood compared to the EqA. Thanks @publiclawprojct and to both speakers! #EA10YearsOn