GMC counsel are Simon Jackson QC (SJ) and his junior Ryan Donohue (RD).
Dr Michael Webberley (MW) is represented by Rosalind Scott Bell (RSB). MW is not attending.
Chair: One of 3 tribunal members acting as Chair
We are back:
Chair is saying there is a later start tomorrow and a great deal of detail in the case and need to set thos out in the determination (D). Hoping for the D tomorrow or Wed latest and first expert to give evidence on friday
RBS: I need to liase with those who instruct me. I think it proper to indicate I oppose any application to proceed in absence
Chair: thank you. I'll come back to that
SJ: it actually bleeds into the point RBS has just raised....Should we just go back into private.
Chair: of course
I am back in the waiting area
We are back.
Chair: both of you made provisional submissions, do you have any updates
SJ: tribunal should proceed to deal with these individually. RSB says in any event we are going to be facing an app after the first one
RSB: I agree with SJ and would invite you to finalise written determination then proof of service and then move on to 'in absense'. I'll need another written D on that.
Chair: we will cross that hurdle when we come to it. We will consider the merits of it and if possible
Chair: we did discuss on provisional basis as to whether matters should be taken sequentially..in light parties agree on that, that's what we will do. It seems to us the decision to adjourn or proceed in absence are separate...
Chair: ..butbthere is an overlap between the two & should give assistance to MW to know our reasons of adjournament. We propose an update after 2pm Tues whether we can hand down written reasons, or if its on Wed, we'll let you know. If no other matters we will adjourn.
Last part -
BN - is 7b is engaged then 7b should be engaged, in the way it was framed - it was said it was engaged.
BN - [addressing whether the in app communication - hard to prove - as whole thing shut down long ago - (goes to ability to prove what went on)
BN addressing HR commision
- GI doesnt include thoughts & feelings
- chief justice for SA -when you have multiple purposes - you look at text and context on cases
BN - engage with conduct - 'her gender characteristics are why she is being treated like a man'
But RT gender characteristics isn't made out - not made on what's pleaded to. The gender evidence is not enough to locate the discrimination in the case - as put
Part 4 -(Correction on MM, the name was actually Elodie Nadon, apologies)
Counsel coming in.
BN - parties rely on conditions of court (lists paragraphs)
BN - speaks of the content of a treaty obligation what it depends on - reads the interpretative principles -
- given weight - footnote says taken as a whole - the int law,... BN says court only takes on recommendations
...but can't be elevated to ignoring the intent of the instrument/treaty.
BN - footnote 7 refers to (gives a court event /occasion/judgement) para 66 - proposition which footnote supports - the point these general commentaries used in a broader context & application to indi facts
Part 3
BN - Have to engage with case as pleaded.
Honor made remarks - there is a division tween direct and indirect discrimination (dis')
Only one way to pursue this case is it has to be direct - indirect in discrimination -
J says planning direct and indirect discrimination..
J reiterates PLAINLY dir and indir discrimination.
J asking if only handling direct - not a way to procede
BN and arguing -BN arguing about a comparative class -
J says should address both,
BN says will do so - but makes the point - that the case has changed - as imprudent
BN - what is relevant is the facts
Court requires to define GI which Tickles lawyers haven't done. Bn going to Gender identity def.
J - the adopted the commissioner's definition
BN - objects Tickles's lawyers (RT'sL)
BN - reads out the GI def
Part 2 -
Ms Mcdonn (MM)
MM - reading sections relating to justifying (SG been charged 200K aggravated damages)
Puts to J that should refer to that section due to the extent of hurt as purpose of SDA - to protect -
- sustained misgendering for 3 years
J - queries...
J - read Caplan relates to actual conduct
mm - continued misgendering
J - when is the first act relied upon - the more conduct is removed from initial acts - more it weakens the argument
-MM - [repeats misgendering]
-J bulk of case about tweets and so on
..
MM - 18/3/21 - received the conduct ? (discussing)
J - cant be the case everything done after the act - is (relevant)
MM - says the continuing campaign continuing to misgendering aggravates the initial incidence - the point she was excluded from the app -perpetuating hurt
AHRC - Australian Human Rights Commission
ZH - Zelie Heger (counsel)
AC - Anna Cody - Sex Discrimination Commissioner
Further abbreviations:
LAAW - Lived as a women
TW - Transgender Women
App - Giggles for Girls App
Correction - Day 3 is to commence at 9.30 am, all counsel has arrived. The court is again full.
Last Part -
ZH - [looking at sections of documents to define terms - special measures and equality, how CEDAW relates to this...
- is court acting with reasonableness and the capacity of the measure; how it was executed
4 issues of sections or questions 1. what does women mean - if TW is excluded and is a women - thats relevant 2. does the app fit into the description of discriminating
How does the app fit into the categories regardless of sexual orientation, pregnancy etc no distinctions
...of the app how does sexual orientation measured - lesbians (clarify later) 3. Can the app discriminate on GI - ZH says AHRC says it can - and the app can't discriminate on any of the conditions as mentioned before
ZH - is mapping sections of SDA to sections Cedaw