Thread by @tribunaltweets

Good morning and welcome to the case of For Women Scotland (FWS) Ltd applying for a second Judicial Review Vs Scottish Government (SG). The hearing is 2 days
tribunaltweets.substack.com/p/for-women-sc…

If granted, it will be the 2nd JR brought against SG over the definition of ‘woman’. Both judicial reviews pertain to the definition of ‘woman’ in the statutory guidance produced by the Scottish Ministers
Scottish Legal News article: bit.ly/3tcRzWf

In the 1st judicial review (JR) FWS won on appeal. The court ruled that the definition of ‘woman’ in the Equality Act 2010 is the only definition which the Scottish Parliament could have legislated for in passing the 2018 Act.
Ruling: bit.ly/3UFkjm1

After the 1st judicial review Scottish Ministers published revised statutory guidance and FWS wrote to the SG asking for the guidance to be removed. SG declined. Today and tomorrow, FWS is petitioning for a 2nd JR to challenge the SG interpretation of the word ‘woman’.

Interveners are Equality Network with Dentons and LGB Alliance with Gilson Gray. The interveners provided written submissions only and will not be participating in the substantive hearing today/tomorrow

Due to begin at 10.00am before the Honourable Lady Haldane

Abbreviations

FWS: For Women Scotland
SG: Scottish Government
J: Judge Lady Haldane

Petitioner:
SM: Sindi Mules at Balfour + Manson solicitors for FWS
AN: Aidan O’Neill KC for FWS

Respondent:
SGLD: Scottish Government Legal Department

Other agent:
DM: Drummond Miller for EHRC

Now in court session but no sound

[technical issues. The Clerk has asked observers to rejoin and we're in a waiting room]

Back in court with sound.
J: [discussing request for notes to be made public] It's not appropriate for me to order parties to release notes. Parties are aware of this request from one newspaper

J: That request can be responded to. Up to agents
J: (speaks to remote observers). no court ability to mute observers. a remote user is not on mute. It is frankly a little distracting. please check screens to make sure you are muted

a: the interventions by the LGBA is purely a legal issue before the court. I'm not going to go into anything they say. I will focus on Scottish ministers. the central issue of this courts is whether the obtaining a GRC means the PC of sex for the EA2010 is also changed

a: the Gender representations scotland act 2018. We know in that judgement that the inner house made it clear that the extent of the PC in the EA is beyond the competence of the SG authorities to modify. so when we see EHRC say use the term 'legal sex' not biological sex in EA..

a: that substitution required by the GRA 2004. so we have guidance by Scot Minister about what is meant by 'woman' and sex in the EA as a result of it's interaction with the GRA 2004. the SG are advising on an interpretation. is it correct? matter for the court

a = AN: This court is faced with this question with implications for Westminster statues across the UK. applies outside Scotland. against that background essential court approaches with background of how have we got here. I will take a day on knowing what the back ground is

AN: secondly. the SG has intro'd a bill to amend the GRA. significant change. I'm not going to cover but the court needs to be aware. PDF page 2585. the changes are summarised by the SG in their explanatory notes to the bill on PDF P2564. simply so that the court is aware

AN: We see in the explanatory notes to GRA bill is the removal of the req for an applicant to have had gender dysphoria(GD). (P2564 of the authorities - para 17) summary by SG ministers. removal of GD and req to have medical reports. the reduction from 18 yrs to 16 yrs

AN: Currently medical reports have to be obtained, that's being removed. applications to registrar Scotland. not refusing, simply granting. period of time reduced to 2 months. The AG reports annually the no. of applicants. The SG say they have no hard data on how many ppl have

sought a GRC under the current regime. Proposed bill includes reporting no.s of GRCs as a duty.
AN: it says the SG has little robust evidence of how many trans ppl in Scotland or characteristics(?) of trans population as a whole. they say based on other countries, apps will

AN: increase. They estimate, based on the limited info from similar countries, that GRC's will be 250 to 300 applications per year. but that's against estimate of 20 to 25 current applications

AN: the changes in the proposed GRA bill will lead to an increase of GRCs of at least 10 fold. Now all this anticipated increase in no. 10 fold, is being done in a manner that is legally blind. It is not known what impact on sex discriminations and sex under the EA

AN: That's because no one knows. so that's part of the background. Put in the whiteman case to clarify the law to allow parliamentarians to cast votes in a responsible manner. that's a proper constitutional approach. the answer to this question will affect that.

AN: depending on what this court decides. if the court upholds my argument that a GRC does not result in a change in sex for the purposes of the EA, it will mean that getting a GRC will have little if any legal implications as the law stands in 2022

AN: things have moved on a lot since GRA 2004. the issue then was that ppl who had married and post op transexuals their marriage was not recognised. back then the carve out was GRA to allow continuation of marriages

AN: also matter of pensionable age. back then different ages for pensions 60 yo and 65 yo. now have same pension age. now have same sex marriage. things move on considerably since GRA 2004 law.

J: asks about GRC
AN: it certifies that one has gender reassignment. it can be said to be the states recognition by documentation that the individual has recognition of gender reassignment
J: what practical use is that?

AN: psychological comfort. Gender reassignment as a concept protected under EA2010. No need to squeeze in sex change into sex discrimination because the legislature has made comprehensive protection in relation to gender reassignment

J: You say the protected characteristic applies to those with GRC?
AN: yes but it can be wider. if my argument is upheld it will mean having a GRC will not change sex for the purposes of the EA2010 and single sex spaces. the preservation of SS spaces is done on the understanding

AN: of biological sex. safe spaces for women. that encompasses biological women who do not have a GRC. SG interpretation runs a horse though that by adding a male with a GRC

AN: if the court finds against me, whenever EA2010 references sex, woman, man that has to be read as 'certificate' sex not biological sex. that means any positive action measures in favour of women, like systemic underrepresentation of women in the workforce, would have to

include any biological men who have got a GRC AND (this is the bit always lost) *exclude* women who get a GRC. this isn't about giving more rights. it means taking away rights afforded for the protections and obligations for any biological women if they take a GRC. I'll develop

J: it takes away protection of biological women with a GRC?
AN: yes they become 'men'
J: on your contention does that mean the person can still benefit from rights of bio women?

J: rights afforded by bio sex
AN: yes and obligations due to them. classic case is abortion act 1967 which determines termination of pregnancies. refers to any woman who is pregnant. If as is being said by the other side, definition means man with GRC and excludes woman with GRC

AN: there are rights and obligations
J: giving birth to a child, recorded as father and mother, appreciate context and issues you're flagging up
AN: Yes. we have example in case of Freddie McConnell who was bio female then obtained GRC. he than applied to human embryo

AN: authority and gave birth. Q should FM be registered as father or mother. one of the issues whether they had a licence to inseminate a legal man as it were.
J: issues like that are very complex. specified exception in 2004 act. there was a case before FM
J & AN recall cases

AN: it was more in passing that there were concerns noted. There's a 2003 case relating to toilets. this might take all day because the complexities are heavy. So that's one of the issues. what are the implications of this reading, not of men who take a GRC but women taking GRC

AN: FM is an exemplar of bio woman getting GRC and becoming according to SG a man then becoming pregnant. lots of maternity specific provisos in EA2010 for women. no concept of pregnant man

AN: looking at EHRC argument. the SG ministers approach to GRA reform was summed up in the phrase transwomen are women. (FWS the definition of woman impinged upon which is a reserved matter.) we much less hear 'transmen are men'.

AN: Just as black women are women, to deny racist,
Just as gay women are women, to be homophobic,
Just as muslim women are women, to be islamophobic,
that's a parallelism. in effect a TW would be able to claim 'sex' discrimination. a hidden effect never accepted in any court

AN: on their reading trans men forfit their rights to sex protection. 'now I've got my GRC, because of the sex to which I'm identifying, there's a reduction in rights under the law previously granted to me'

J: mechanism for obtaining a GRC holds a declaration to live in acquired gender until death? will be living until death in acquired gender. is that relevant?
AN: yes. getting a GRC is intended to be a serious permanent step. not pick up and take off as it suits.

AN: tho there is case Bell V Tavi and detrans regret. but as with FM case, forfeited protection. and I say 'fairly' not. if we just stuck to the straightforward meaning in EA. e.g. pregnant woman does not refer to GRC or GRA those are separate. You don't lose as a pregnant man

AN: back to phrase TWAW. one of the basic gramattical problems. Black women, Gay women, Trans women. saying Trans is an adjective. It's not an adjective. you have different types of women. but trans doesn't do that grammatically. it's a prefix. it changes the root word into

something else.
AN: e.g. 'Verse' - prefixes transverse, perverse,
e.g. port - transport, preport - are not different desciptions of ports
the diff btw trans and an adjective like black.
tomboys are not boys. it is a prefix describing girls. their biology remains the same

AN: that leads me to the issue of sex and gender
In FWS case and FPFW case
J: distinction courts have grappled with for years
AN: yes. it's a slippery distinction. under contemporary informed approach there is a diff btw gender 'social expectations of feminine and masculine'

AN: and sex. the difference between sex and gender (apologise I'm a man explaining!)
J: let me be the judge of that!
AN: alright! take example where HoL said any person graduating *must mean a man*. Legal restrictions against women were dismantled.

AN: biological determinism said you can't be a women doing those things in society. *this* case is about biological denialism.

AN: [reads passage from Canada] we lead women's lives, we have no choice. this is about unquestionable biological difference. how much to rearing, society. women have fought bitterly against sex discrimination but know what is a woman and a man. Gender dysphoriacompletely difft

AN: look at FPFW case definitions. it all depends on context. sometimes it means bio sex sometimes gender. but it is a legal question. generalities are not enough. the 'legal sex' concept which the SG has invented incl. bio men with GRC.

AN: FPFW tab 4, para 20-23 page 55. there is no international definition of the word sex so much be given it's ordinary meaning. 'sex' based on bio sex must be accepted
AN: Bellinger - q is correct construction, of matrimony causes act, of sex. context is everything

AN: marriage case Yorkshire. submited marriage is a legal status affecting rights, pensions, housing.
AN: other cases. rigid defn of sex. Tan v Tan, being a male was relevant in a rape case.
AN: limitations of biology carried over 2 a GRC. it will not bulldoze defn of legal sex

AN: many circumstances where bio sex not appropriate. e.g. applying for passport with non gender X.
that is part of common usage in the Oxford English dictionary. among popular usage, behavioural characteristics

AN: Census act 1920, the court found public facing document can have ordinary language approach not noticing distinctions between sex and gender. interpreted to popular meaning. not where matter of status and rights may be an issue

AN: sometimes status and rights are affected by bio sex, sometimes not. there is no universal legal definition of sex. the meaning of sex is context dependent. there are causes where bio sex must be adopted. and rights of others can demand bio sex be applied. and..

AN: may be necessary to apply sex even with holder of GRC
It is context dependent.
the context in this case is the EA2010. It is an act to harmonise characteristics. it is not a straightforward consolidation act.

AN: the sex discrimination Act. seeking to codify and rectify in one statue competing provisions has to be read within its four corners. The SG and EHRC refer to it improperly.

AN: [reads out more examples of legislation related to sex discrim]. European court new provisions, Sex discrim Act, Race Act, Disability Act, GRA, other regulations... they informed the interpretation while we were still members of the EU. Luckily this court no longer needs

AN: this court only needs Sex discrimination ACT and it's all four corners.
AN: [reads judgement of a case] Lord C said we don't need all the bills to determine. My Lords I cannot bring myself to believe... a statue treated this way will be destroyed. Must determine language

AN: the first step is to determine the *language* of the statue. that's not a 19th century obsolete approach.
AN: the court has to answer the Q on the basis of the actual language in the EA2010. what does it actually say? no need to go back to the Sex discrim act or other acts

AN: the question then, using phrase from FPFW case, the terms “man” and “woman” and “sex” whenever used throughout the EA 2010 as being restricted to a specialist, restricted definition based on biological sex.
J: asks Q other bills
AN: no indication that one has pick and choose

AN: using EA means a single source applied to sex discrim, GRA and other bills. what one cannot do is say we're going to confuse GRA with sex when it comes to those with GRC's. that would run contrary to the EA
J: in every context where EA applies, sex must always be sex?

AN: yes
J: no exceptions?
AN: no. set out by parliament. if GRA implicated look at GRA provisions. I tried to do it myself where I argued sexual orientation discrimination was already covered by sex discrimination and it was a very odd discussion. the issue was that it would be

sex discrim

J: we don't need to trouble ourselves as prior legislation
AN: yes the law has caught up. the law no applies to ppl who are gay and ppl who are not gay. We don't have to do it. the legislature has cleared up matters.

AN: section 11 of EA, woman is female of any age. this was in FWS 1st JR. Sex is male or female. provisions for women in context of this definition excludes those who are male.

AN: These cases [reads] show that GRC and sex cannot be combined.
J: I confess I've read this passage several times. it anticipates perhaps the issue before us. it does say that neither case ... a Trans person presenting as a woman can go no further, not a woman. defined terms

J: protected characteristic of GRC is limited. one reading of that might be the Inner House Scotland recognises GRC does not fall into the sex v gender argument.
AN: the impt thing ab this act is that no where does EA ref GRC. GRC's are a subset of Gender reassignment & covered

AN: GRC is a subset of GRA. there are limited ways of getting a certificate. GRA is a distinct characteristic in the EA. The Scot Inner House has taken this GRA characteristic (reads)
[observers unmuted disrupting]
J: asks observers to mute. repeat again. I'm lost

AN: I'm lost too.
AN: EHRC said get around the decision, although TW not a category call a woman if has GRC. It confuses two characteristics - sex and GRA. it means that those who are biologically women who have taken out a GRC will not benefit from measures intended to provide

AN: opportunity despite menstruation, pregnancy and biological facts affecting women in the workplace. on this reading bio women with GRC are excluded from the laws intended for structural discrimination associated with biological women

AN: the Inner House has expressly and unequivocally ruled that, just in the context of the EA 2010 definition of sex and of “woman” and of “man”, a specialist, restricted definition based on biological sex has to be applied in the understanding and application of the EA 2010 PC

AN: EA approach: to reform and harmonise equality law and restate the greater part of the enactments relating to discrim and harassmnt related to certain personal characteristics; to increase equality of opportunity and for connected purposes.

AN: you can claim race discrim even if you are white. And there was sexual orientation discrimination case by a straight man who was teased and subject to slurs and bullying expressed in homophobic terms in the workplace. A male perceived to be a woman could bring a case

AN: A man could claim for sex discrimination despite being a man based on assumptions that he was a woman - e.g. if he used a women's name.
AN: that's part of the EA2010 being comprehensive across discrimination scenarios

AN: Sexual orientation as understood is about attraction to biological sex not gender assumptions. But if the SG ministers are right, a gay person is attracted to a GRC. this is one of the absurdities

J: undoubtedly difficult area. bio male attracted to another male person and that person is born bio female, has GRC, had surgery, looks male. if the bio male attracted is that sexual orientation of same sex?

AN: No
J: surgery everything, with GRC saying they are male. only one of those under sexual orientation provisions?
AN: this is one of the issues of bio males id as lesbian attracted to women

J: it is impermissible to conflate GRA and sex as far as EA is concerned....
AN: there are examples in Scotland and England of gender fraud, going to bed, later on, not sex they say they are, criminal behaviour
J: will leave with you. don't need answer now

AN: pregnancy and maternity express characteristic in EA. all ref are made to women. effectively P&M sub cat of bio sex.

AN: if a person discrim against a woman because she's given birth and is breastfeeding, that is clearly a ref to bio sex. it makes perfect sense. but if SG are correct and case of FM, FM would not be able to, if discrim against beause of his pregnancy, be able to claim objections

afforded to women
Suddently all those protections no longer available to a cat of biological women because they have a GRC. Now is that the intention to blow a hole thru rights? what about children? it is absurd

AN: [reads from EA2010 protected characteristic maternity rights] can only be applied to women
J: could FM claim these protections as a woman? actually scrap that not a good example
AN: a woman remains a bio woman for purposes of EA notwithstanding GRC, doesn't take away his

AN: protections afforded during pregnancy.
AN: a person discrim against another if they treat them less favourably.
If the protected characteristic is sex—
(a) less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding;

AN: If FM is a man
(b) in a case where FM is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.
It actively excludes that
A big black hole on EHRC reading

AN: under my reading, FM would not be excluded. FM would be protected as afforded by childbirth
in my reading biological sex preserves GRA, whereas SG is taking away from women notably in pregnancy and maternity.

AN: In my reading rights are protected. In respondents reading it does the opposite.

AN: On the SG reading (of the EA), those who benefit from measures are women w/o GRC and biological men with a GRC. this is Not what was meant for special provision under the act - proportionate means for a legitimate aim.

AN: structural causes in a patriarchal society. a GRC is not a get out of jail free card for women. it is misleading and unjust to say a GRC fixes that issue, solves that problem for young women. We know there has been a rapid change in approach to GRA. Stats in Bell V Tavi

AN: rapid rise in young women IDing as opposite gender. that can be seen as a response to discrimination women face but doesn't answer it by getting a GRC.

AN: Single sex safe spaces, women's refuge, rape crisis because it is women, whether or not they have a GRC, who remain victims of that discrimination and ill treatment in our society. the EQ recognises that by allowing 4 single sex services.

AN: it will not be sex discrim to provide a single sex service in a hospital or another establishment with special provision or where physical contact takes place. those concepts of single sex services can only be understood by strict biological sex

AN: clearly there are issues in returning to work covered by EA. specifically related to women.
These are important. must provide answer to issues around structural discrim even in the face of *formal* equality, still in a patriarchal society.

AN: SG sayif there is any doubt as to this, it is answered by references to woman and man in the sex and human rights act. Well yes but biological women are a human rights matter as well. SG duties to respect privacy, dignity and decency. if the EHRC is correct & it's 'legal sex'

... a hospital would be guilty of sex discrimination if they provided single sex wards. (under SG and EHRC interpretation of EA)
AN: the GRC bars them from coming in single sex. whereas 'legal sex' opens the door

AN: I anticipate the response will be 'oh no that's not the case'. see schedule 3 para 28 of EA2010. separate provisions of the sexes. that says there can be lawful gender reassignment discrim if proportionate means of achieving a legitimate aim. BUT by SG redefining sex, they

AN: SG say provision of single sex services is bio women without GRC and Bio men with a GRC, for the purposes of single sex services.
J: hospital would be saying bio women with GRC excluded
AN: Yes because they're not women. the hospital has to undergo double discrimination

J: on your hypothesis, the hospital excluding a person who may look like a man a female with GRC is not allowed in
AN: not only that. separate sex has to include men with GRC and exclude women with GRC. ludicrous nature when you drill down

AN: women with GRC don't get in the door at all. biological men with GRC get into the ward because they are legally women. bio women who transition but don't have GRC can get into the ward. Even being able to spell this out can you imagine what it's like a for hospital nurse?

AN: EA means ALL bio women can be accommodated in one ward. insofar as there are difficulties, those with gender reassignment could be (missed) but no biological men get in. FM can get into obstetrics. SG say he cannot

AN: A counsellor working with victims of rape might have to be a woman and not a TW with a certificate, to avoid causing her further distress. example of proportionate response.
Difficulty in how that example can fit in to how SG/EHRC define sex. TW can be a rape counsellor..

so you are discriminating against the other woman. accusing her of transphobia if not accepting TW rape counsellor.
AN: In EA you only provide services to one sex.

AN: bio women victims of rape, in that context we do not want a bio man to be the rape counsellor. but according to SG/EHRC that service would not be for one sex, not provided. as soon as you drill in you fall into the rabbit hole, Alice in Wonderland

J: only avoid rabbit hole if?
AN: if you use biological sex on a single sex basis. not allowable on SG/EHRC definition.the explanatory notes to the EA 2010 and the EA 2010 provisions themselves only make sense if the “sex” continues to be seen as and only as a biological

reference distinct from issues around gender reassignment.

how you use words across the act EA vs EHRC reading. FPFW case important for rights of women. SG poorly done with no biological protections. any other reading is a nonsense. an impossible task for hospital administrator

AN: it's also a minefield for lawyers which is not what was intended
AN: Next. Does a GRA make a difference? can you substitute into the act whereever the Act uses sex?
J: we're coming onto an important (missed)

J: break for lunch. back at 1:50pm
All rise
Morning ends

@threadreaderapp unroll