Thread by @SexMattersOrg

Day 2 #Xpassports case in the Supreme Court.

Christie Elan Cane says per case concerns "the community of non-gendered, non-binary and intersex persons and others whose gender identity is neither, or neither exclusively, male or female.”

Starting in a minute....

You can watch live here
supremecourt.uk/live/court-01.…

@fairplaywomen are also watching and commenting

Today it is Sir James Eadie QC for the Home Office who will say that the decision made by the Court of Appeal was correct

Sir James sets out the question:

Is there a positive obligation on the state here?
Does government positively have to *do* something to protect private life ?

If there is a positive obligation then all countries are in breach

And there is a current positive obligation

How does one analyse whether a positive obligation has arisen.

The main principles come from the case of Hämäläinen

Sets out how the analysis works:

It is about factors and margins

The punchline for the ECHR is there is no positive obligation because not acting is within the margin of things that a state can do and not be in breach

There are four issues:

1) Sensitive moral issues
2) Consensus amongst Council of Europe States
3) Public interest
4) Private interest

The European Court has taken to a cautious approach to recognising particular rights of trans people (he says traaaaaans)

to decide whether the relevant state has structured a fair balance

Goes to the case of SC - a supreme court case about the "two child limit" on benefits (which Lord Reed, Lloyd-Jones and Sales were on)

- about the structure of margins and factors

supremecourt.uk/press-summary/…

You work out and weigh the factors to work out the margin

supremecourt.uk/cases/docs/uks…

You don't just jump from the identification of a "suspect" ground to the conclusion that the margin in narrow.

That is antithetical to the approach that Strasbourg would take

Invites them to read 103

paragraph in relation to sexual orientation. It is a ground for discrimination but nevertheless a wide margin is allowed

Talks about the Eweida case (religious discrimination)

Conclusion on margins

In summary, EC has generally adopted a nuanced approach, which can be understood as applying certain general principles, but which enables account to be taken of a range of factors which may be relevant in particular circumstances, so balanced overall assessment can be reached.

There is evidently a different in the approach to margin in Strasbourg or domestically under HRA case law are analogous.

You are asking similar questions about which constitutional actor can act

Courts are cautious to intervene to impose positive obligation

2) There is a clear constitutional constraint imposed by the Human Rights Act.

The Ullah principle - don't go beyond Strasbourg

Back to SC.... Lady Hale in Countryside Alliance

Separation of powers

Now looking at AB - another recent supreme court case about prisons and solitary confinement

Warns against going further than the European Court would go

supremecourt.uk/cases/docs/uks…

Lord Reed - the rationale about separation of powers is not relevant to margin...

Sir James - I agree. But if we are fully confident that Strasbourg would vindicate it we can go there, but if we are not we shouldn't

As my Lord said yesterday "would be simply making it up"

Rabone case ....

Principles:

Bring rights home

No more no less

Importance of separation of powers - this isn't about whether the courts have a role or a function. That mischaracterises the issue. The margin of appreciation in Strasbourg does not shut out the domestic function. The question is how not whether that approach is carried out.

The court is not freed because you utter the words "Re G" ... it just means you need to consider the domestic principles.

That is what Lord Hoffman recognised

Then the big question is - are there moral and ethical issues

is the societal debate in a state of transition?

There are evolving rights...

A series of associated issues that need to be dealt with

What preconditions if any before a person can take advantage of X on a passport, what criteria for recognition of a "non binary" person.

What other issues need to be addressed in relation to the M / F distinction in law and administration?

Ms Gallafant says we are not in that territory - because putting X in the passport is neutral and does not raise any questions about third gender recognition.

This devise recognises implicitly that there would be controversy if this was in play

This is a devise to say "look at this issue in isolation".

A state cannot do that.

There are serious issues involved in making X on the passport a choice issue - do you want X to be a pure choice thing?

That devise uncouples the boat from the engine!

It is perfectly clear that social issues are involved, that is what is driving her case (I don't think he said per).

Those issues are squarely engaged.

Lord Sales - if it is a pure matter of choice then it isn't a suspect category.

If anybody can chose X then "anybody" is not being discriminated against

Sir James - yes, that too.

Because of the sensitive issues that is why consensus is so important.

Is there clear evidence (in reference to the clear alleged obligation of consensus) IN OTHER MEMBER STATES

Lady Arden asks about whether other states are influential on decisions in EcHR

Sir James: that would be very peculiar - consensus between Council of Europe states is central to the EcHR system - to make a positive obligation to protect private life

The EcHR does not impose solutions but allows for differences, especially when there are difficult social and ethical issues.

Cautious approach to imposing positive obligations.

Is there a consensus that X in the passport should be allowed? No

Back to Hämäläinen - the fact that rights are engaged does not place particular obligations on a state. You simply have to apply the tests, ask the question

hudoc.echr.coe.int/eng?i=001-1457…

Lady Arden asks - is the fact that you allow transgender surgery, allow someone to be transgender... that you don't allow the documents to catch up?

Sir James - the decision to focus on passports is a forensic attempt to avoid the question.

The attraction of trying to confine it to X on the passport is a way to avoid the questions about what is involved in recognition of non binary.

It tries to avoid the consensus

The Council of Europe position is the position. We do not have to ignore other international practice, but that cannot be the driver.

EcHR Goodwin made reference to the international context. Important to place it in its proper context (refers to something in the case...)

Lord Lloyd-Jones asks about customary international practice

SirJames: Yogykarta does not amount to Opinio Juris (i.e. binding)

Goes back to AB , and SC

be cautious about international law

can't just throw in any instrument you come across - e.g. parliamentary assembly resolutions.

Recommendations are not obligation, not evidence of state practice.

Now referring to consensus

There is no consensus.

Only 2 states permitted it Denmark and Malta. Now also Iceland. Only Iceland recognises non binary in the law.

Other cases have not lead to finality or legislative change

Gallevant said she could not point to 50% of states she was being modest.

There are 3 in Europe

Australia, Canada, India, Nepal, New Zealand and Pakistan.

US illustrated difference across states

The Yogyakarta have never been relied on by the European court, save for in the dissenting judgment in Ha

HRW Counsel Ms Carss-Frisk - said "consensus of experts" that is not the consensus we are after. It has to be a consensus of state.

She said they were restating international law, and in that way you could be satisfied

With the greatest of respect to her and the authors, that is untenable.

there is no indication in that report of how they reflect current international law

If they had set that out they would have bumped into a very large rock - the absence of any analysis of state practice

They are not in any sense of the word an adjudicative body #yogykartaprinciples

Now onto the third factor: the public interest.

Is the state entitled to take the view that if a change is to be made it should be made coherently, and it should be done across the board "we need to consider the consequences and the ramifications of the logic"

This X in the passport is not an isolated issue.
The state can take the view that they can take the time to consider. They can take the view that they do not need to take a sole measure considered in isolation.

Ms Gallafant to the extreme view that coherence is not a legitimate aim.

It is of obvious interest!

The change can and should consider the coherence of the system for recognition of gender is a legitimate aim.

English law is currently based on the M - F disctinction

Just picking something because it can be done by Royal prerogative and relatively cheaply

There are real and proper implications to consider.

If you move in one area we know exactly what happens next: you create the comparator target

You have to consider consensus in those areas, difficulties in other areas.

Now on Bellinger v Bellinger

Breadth of issues

publications.parliament.uk/pa/ld200203/ld…

Bellinger was an earlier case on legal sex change (which at the time was refused) publications.parliament.uk/pa/ld200203/ld…

Gallevant said that EcHR don't consider coherence.

We disagree. They are coherence at work. Consider likely consequential issues

"Joined up policy is a virtue not a vice"

Lady Arden "where does this fit in in Article 8 (ii)"

Sir James: We think it is part of the balancing - having a coherent regime falls within 8(ii) - it is in the public interest

Lord Sales: what about the argument that this doesn't fall in 8 (ii)

Sir James: rights and interests of others in having a coherent system of law

Lord Sales: How do you respond to P 65 in Hämäläinen?

Lord James: public interest!

You could look at article 8 and pretend it is a negative interest, but even that doesn't preclude public interest and coherence

Lady Arden: its balance of interest

Sir James: The real punchline is paragraph 67

Lord Reed asks about pensions cases, retirement, treating men and women equally - numerous judgments where the courts have accepted that an admittedly discriminatory situation has been allowed to remain while the state sorts out the broader system.

But not a "legitimate aim"

Sir James - now we have the clarity of the reasoning in SC it is interesting to go back to other cases - they are always doing that relative weighing exercise. Not treating the structure as a straightjacket

Lord Reed - other cases - to protect legal certainty, orderly transition.

Sir James - yes evolving rights, avoiding uncertainties from moving too quickly.

Lord Reed - Steck allowed time. or Prospective remedy

Sir James - practicalities in relation to coherence in Ms ONeil's statements (from the initial case). She considers across government departments where this change would lead. Complex and difficult issues which would need to be considered.

The forensic choices that have been made lead to the assertion that X on the passport are a positive impact but other issues such as pension rights, the prison system are not considered.

Lady Rose asks has the debate over all these years got much further since Ms ONeil's statement she just says "gosh it is complicated"

Sir James: the logic is - if you are going to a recognition thing, difficult and complex issues, legislative change may be needed

Lady Rose - it is a bit of a leap from X markers the passports to reshaping the prison system?

Sir James - why? - there is no recognition of this state currently. Once you open the door through royal perogative the results will come. the comparators are there. It isn't such as leap. It is a major change. These are serious issues. The scale underpins the lack of consensus

Of course one could as a matter of law exercise the Royal prerogative. It wouldn't have immediate effects.

But that recognition in one corner would lead to other issues, moving from M F as a binary to something different

Gallafent says there is no recognition of X gender. she says no need for coherent change. That is unrealistic and selective.

That is the whole policy driver. This is having it both ways.
The change is premised on non binary people having a ID that reflects their identity

You wld then immediately have to decide what the criteria are. If it is not pure choice then what is it?

One cannot have the position both ways. If u accept that passports are used as general ID then what are ramifications?
& would then create the target for the next change

Existing incoherence of people allowed to change passports M to f - that reinforces the need to consider matters across the breadth of the issue.

All the more so if passports are in broad use for identity purposes. P 68 CoA

NHS provides treatment? that is incoherent?....No. that reads too much into Goodwin.

The NHS position is focused on justified medical intervention and not law.

That does not create the specific form to have X on the passport

If you applaud one form of respect it does not follow that the wedge has been put in and all other things must follow.

Security and identity: relevant to preventing fraud on issuing passport, and relative to identifying travellers at a border.

Woodhouse (evidence) talked about the potential for fraud. Internal review at section 3

C & DWP (supreme court case)

Sex is a factor used for checks at borders.
Having the X marker means that the sex field is not operative
Accepted in first instance, rejected by the court of appeal on the basis that other countries permit X. We have dealt with that in our case - other countries take that risk

[Comment: " just because your friends mum lets them do that doesn't mean I am going to let you !"]

We submit there is no positive obligation.

The government is not ignoring the issues. Parliament and government, there is ongoing work. It can only be a good thing that the issues are being thought about seriously.

This is not like Goodwin (inaction over 16 years)

The court of appeal said they could dismiss security as having no rational basis because other countries do it.

Lord Reed remarks on the court of appeal taking ICAO report on machine readable passports over the Secretary of State .

Sir James - cost and numbers of people - we have dealt with in our case. Number of people benefiting is small.

4th factor - focus on the individual

Principles - whether this step engages fundamental values in relation to private life are at issue - is it essential to respect - this is a relative question

Have to identify the particular step in question and he extent suffered.

The fact that gender is a factor does not determine that there is a narrow margin (particularly in light of SC)

[Note: SC was about sex not gender identity!]

In this context of gender identity and the difficult and complex issues - they are the premise for the debate. It is clear from all of the cases that the approach in Strasburg is NOT to say "gender identity" = suspect cause = narrow margin

Back to Hämäläinen - just because of gender identity does not mean the margin is narrow

And in AP Garcon & Nicot v France

Sensitive moral context - Strasbourg takes a cautious approach

hudoc.echr.coe.int/spa?i=001-1729…

And in Freddie McConnell case

No consensus in Europe

Resonates with what we have been hearing

judiciary.uk/wp-content/upl…

[I'd say Sir James case is a refutation of

"trans rights are human rights, get over it" approach ]

We are dealing here with evolving rights. None of the Strasbourg cases have related to non-binary.

You cannot simply jump from M- F transsexuals to non-binary. It is another step. Legal and practical consequences

Both the judge and the court of appeal put weight on the personal impact on this appellant.

It is important and relevant to have regard to the true nature of the impact on the appellant of the true nature of the measure they challenge

There is no detriment to the appellant on benefits, marriage, work etc... it was just about X on the passport.

Judge was less convinced about the impact.
Court of Appeal agreed.

There has been no victimisation or harassment of appellant based on passport

Appellant refers to harassment of others

It is questionable whether X on passport would solve that

Sir James says Judge in lower court states that the question on the passport is "gender identity" and the language in the passport is "old fashioned" and is sex 😱😱😱😱

Sir James: Passport can be used as a form of identity - the passport still uses the "old fashioned" language of sex rather than gender - you haven't got a current full blown assertion of gender

[🤦‍♀️🤦‍♀️🤦‍♀️🤦‍♀️🤦‍♀️]

A person who cannot undertake without outing themself as trans - this causes perpetual embarrassment

See B v France

ilga-europe.org/sites/default/…

but this is quite different if someone is non-binary - it is non comparable

How widely would it be used? only 141 taken up in Australia

[Adjourning now, back at 2pm]