Thread by @fairplaywomen

JUDICIAL REVIEW THREAD
#scottishcesus #FairPlayForWomen
FPFW has been given permission by the court to live tweet as we watch proceedings of the judicial review of the guidance to accompany the ‘sex question’ in the 2022 Scottish census/1

Judge is The Hon Lord Sandison
Advocate for FPFW: Roddy Dunlop QC
Advocate for Scottish Ministers: Douglas Ross QC /2

Roddy Dunlop QC is now addressing the court/3

Census legislation is being explained. Judge asking for more details about the criminal offence of providing false answers/4

Judge concludes "A premium is placed on what is and is not a false answer" /5

RD QC points out the statutory context for the sex question. Legislation makes it mandatary and must be answered correctly /6

RD QC now turns to the "guidance". The answer does not have to be what's written on a birth certificate or Gender Recognition Certificate /7

Judge asking what legal status the Guidance has.
RD QC says it is not statutory guidance.
Discussion happening about whether guidance should be taken down or replaced with lawful guidance /8

RD QC: What is the statutory meaning of sex and is it different north of the border /9

"it would be rather odd to find sex means something different in Scotland" Roddy Dunlop QC /10

Judge points out that the English Guidance was prescriptive "you must" whereas the Scottish Guidance is "you could" /11

Scottish Guidance /12

Judge looking at the details of the ruling in England and the approach taken by Justice Swift and the consent order that was subsequently granted /13

The Consent Order relates only to the meaning of "sex" in the Census Act 1920. It has legal effect in England and Wales. /14

RD QC: The meaning of "Sex" is a question of law and not a matter for Scottish Government. It is a matter for the court /15

"the concept of legal sex is now well-established in England and Scotland" - Roddy Dunlop QC /16

Judge sets out the framework that if census legislation relates to "legal sex" then the question must be answered in terms of legal sex. The question is whether it relates to legal sex or something else /17

RD QC: Sex in law is sex registered at birth or acquired by a Gender Recognition Certificate.

"There are two legal possibilities and no more" Roddy Dunlop /18

RD QC discussing Bellinger - the case law that "sex" means sex registered at birth.

Judge raises point that determining sex "for the purposes" of marriage could be considered "important". Is what's written in a Census important in the same way? /19

RD QC: The definition of sex begins with Bellinger "sex = sex registered at birth" and is then extended by GRA2004 /20

RD QC: The meaning of "sex" in the 2020 Order must be the same as the enabling 1920 Census Act /21

RD QC: Since 2004, sex can be changed for all purposes by the GRA2004. There is no other way. /22

RD QC now turns to the Scottish amendment bill as introduced in 2019. It had the phrase "including gender identity" to the particular of sex. It was removed at Stage 2 due to concerns expressed in parliamentary scrutiny that it would "conflate sex and gender identity". /23

RD QC: Instead a new (and distinct) particular of "trans status" was added to the bill.

Minister Fiona Hyslop "we do not want that kind of conflation. It was never our intention to conflate sex and gender identity" /24

Now looking at the view expressed by the Equality Network that "sex" can include "lived sex" /25

RD QC: The parliamentary discussions were keen to avoid a conflation between sex and gender identity for the sex Q - the Guidance is contrary to that /26

RD QC: The meaning of sex therefore remained unchanged from what was used in the 1920 Census Act.

Judge now thinking about the idea that if transsexuals existed in 1920 did parliament mean "lived sex" in the 1920 Census Act /27

"What's the point of the 2004 GR Act if parliament has recognised self-identification of sex since 1920?" Roddy Dunlop QC /28

RD QC ends "The sex Q has been left binary - it must be answered and answered truthfully. The true answer is the sex on b/c or GRC. The Guidance "authorises or approves" unlawful conduct. The appropriate remedy is to reduce the unlawful guidance". /29

Douglas Ross QC now speaks for the Respondent /30

"The 1920 Act was designed to evolve with the times and accommodate changes" Ross QC /31

Ross QC now discussing the relevance of Bellinger case law (meaning of sex in relation to marriage) is generally applicable to other area /32

Ross QC suggests that Bellinger has been over taken by "events" /33

Ross QC asserts that the ruling in England does not resolve the matter for Scotland. The interim decision was "provisional". And Scottish Court is not bound by that decision /34

Ross QC says "What is your sex" as meaning what's on your birth certificate or GRC is not the most 'natural' meaning of the words./35

Judge ask Ross QC whether he thinks that in the census is there a reasonable range of acceptable answers. Yes. "Either answer would be acceptable" /36

Ross QC "Respondents are moving the goal posts to make the meaning of the sex Q different to what it was before" /37

Ross QC "at least some of those answering the Q in previous years will have answered based on the identity of the sex in which they lived their lives" /38

Ross QC turns to the principle of "updated construction". This is what the meaning of a word in an act should be read as what it means today /39

Stopped for lunch - restarts at 2pm /40

Ross QC: discussing updated construction. Judge should take the "normal meaning" based on changing social attitudes regarding what sex is /41

Judge: "“have you any substantiation that social attitudes have changed?”" /42

Only options in Census are female or male. A transwoman without a GRC is legally male for purposes of sex discrimination. Ross says that this has no relevance to this case which is about the census /43

Ross QC: If court were to conclude that census data might be more reliable if accompanied by guidance based on birth certificate or GRC that would not make the existing guidance unlawful. /44

Judge agrees he is not in a position to decide which wording of guidance would be the best for the census. /45

Ross QC says the Guidance "does not have an impact on response rates by trans population".

Note: NRS has no statistical evidence to support this assertion. /46

Ross QC turns to written submission by the Equality Network. It is "consistent with the Respondents position" /47

Dunlop QC now responds /48

Amendment to the Act was subject to a vote in June 2019. This amendment introduced the new Q about trans status. There is an "internal inconsistency" about the need to avoid conflating gender identity and sex. There is now a clear distinction between sex and trans status. /49

Dunlop QC: Does the law as it stands permit the conflation of sex and gender identity. The concerns of the parliament about conflation were clear. So if this conflation is to be lawful it must be done through parliament. It was not. /50

Dunlop QC: Is there a difference in understanding of what sex means when 1920 Act passed and now. There is no "general appreciation" that sex can change. Some people think it can some think it can't. So this requires a legislative solution and not a judicial one /51

Judge wraps up. Decision will made on another day /52