Thread by @tribunaltweets

Good afternoon 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. This morning's session can be found here with links to our substack: threadreaderapp.com/thread/1590280…

The afternoon session is due to begin at 1.50pm 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

Hearing recommences.
AN: What difference does the GRA make? Re single sex spaces many orgs in public sector in Scot have trans inclusive spaces. There is inclusion in normally single sex spaces inc anyone who identifies as the sex for the SSS. Such spaces regardless would not

count as single sex spaces (sss). When we say sss this has no impact on the trans inclusive policies which exist. FWS says these are mixing sex and gender identity.The issue of discrimination re sss. The trans inclusive spaces are not included in this

Therefore it is not unlawful for trans inclusive spaces (TIS). Re the EHRC Scottish ministers claim that a GRC make a difference and changes the sex of the person who gets it. The consequence is that biological women with the GRC are not included with women without one

On to whether the GRA makes a difference. My lady asked what difference it makes between biological sex and those with a GRC. You could ask what diff a birth certificate makes - who ask for one.
J: it is an important document
AN: it is and it has an important function

J: it tells you who you are
AN: yes. You should not minimise the symbolism of such a document. Symbols matter and mean something to you and/or to the wider world. The issuing of a GRC will still have an important symbolic value. It means that someone can enter in marriage in

their identified gender rather than into a same sex marriage
AN: [cites Belcher case]. When you have a GRC it is mooted that there should be a deathbed GRC in case of imminence of death, a person can be recognised as the opposite sex in death if they choose.

J: It has huge significance but I am wondering how far this can go. You can marry someone in your acquired gender. If you were a man with a GRC you can marry a man
AN: you can now anyway
J: I accept point of symbolism

AN: [cites case re B&B owners who refused a double room to a gay couple]. The judgement said civil partnerships carry the same rights and status as marriage.
J: if you are an unmarried person and become married your status changes?
AN: yes and are protected under marriage status

J: This goes further than symbolism
AN: I agree. But now that would have been the case and yes this allows you to marry not into a same sex marriage. The symbolism shouldn't be downplayed. The concepts of marriage with a GRC is part of a bigger picture

J: like those in civil partnerships who chose to then become married when that became available
If you want legal docs you will be required to provide birth certificate. So your status can be changed in many ways. So not just symbolism

AN: Nothing I've said takes away from that. Does a GRC change the protected characteristic of sex in the EA2010? I say no because it alters the EA2010 and changes the provisions therein re pregnancy etc for women.

In the GRA section 9, they use gender and we know this because we have looked at documents re this. A person becomes their acquired gender. They mention gender because the matrimonial act mentions male and female meaning sex.

[Note: Bellinger case not Belcher case in previous tweets]
AN: The change in the wording was changed to make sure it was compatible with the matrimonial act. The wording has been run with - meaning that gender is conflated with sex in other circumstances.

AN: Re: The joint committee on Human Rights. We see moving between sex and gender. It isn't a statute so it's helpful. Birth sex is referred to instead of biological sex.
AN: All they've said in your draughting. The primary issue is the right to marry and to amend that.

AN: we see again moving from sex to gender. This is the point about identifying the potential problem. The legislation is either cast re people's physical sex
J: are physical and biological synonymous?
AN: yes

AN: this is true of the matrimonial act and the sex discrimination act re their sex not their gender
AN: The sex discrimination/gender reassignment act resulted in regulations being made in 1999 - rulings were made so that someone under gender reassignment would be covered

with the same protections as those under the sex discrimination.
AN: we are dealing with a codified act
J: It wouldn't dilute?
AN: if anything it is strengthening.

AN: in 2010 there was a chance to make sense and harmonise everything. The rights have been set out in the act by parliament.
AN: looking at community law - this provides where a GRC is given, that person becomes the acquired gender. As we know, in the FPFW it depends on the

context. Sometimes sex means biological and sometimes can mean gender depending on the context. It is possible that courts can mean gender when they say sex depending on context.
AN: Parliament under EA2010 has made the necessary changes. Once again they suggest that the word

sex should be brought in with specific relevance re Bellinger.
J: are you saying that the implication is that when the act says woman it means biological
AN: yes absolutely
J: It says "if it is necessary to decide" - you're saying it is not necessay?
AN: correct

J: these docs can help elucidate the meaning?
AN: yes
AN: the doc is meant for parliamentarians not lawyers. It appears that with the proposed changes - refers to gender not sex - a born man who has a GRC would be treated as a woman.

They decided to see about creating other changes in the law to have this affect but parliament did not implement this
AN: Would a MTF be protected on the grounds of them being their acquired gender? In the 1975 act it should also include people into their acquired gender.

Government did not pass this. This was not done.
AN: There is nothing in the GRA that has the provision to extend the acquired gender to become sex in the law. We are dealing with the equality act not the sex discrimination act which is no longer relevant.

AN: the wording was used to specifically used to over the Bellinger case. The Government were recommended to allow gender to mean sex. They did not agree to that.
AN: The suggested approach is that there isn't any inconsistency in the Equality Act wrt the GRA.

There is - it punches holes in that.
AN: If they were correct and the PC of sex and the definition of man and woman were changed, it would make the GRA nonsensical - as has been noted on a number of occasions [cites case]. Substituting biologial sex for gender would mean that a

woman who was breastfeeding but had a GRC would be excluded from protections for women
AN: The EA is the law which deals specifically with discrimination [sound goes]...pension rights. There is no provision which mentions a GRC meaning that you can claim sex discrimination in

your acquired sex rather than your biological sex
J: except that with a GRC you are said to have changed sex
AN: and round and round we go.
AN: My colleague has just pointed out: there is one passing mention in the GRA regarding marriage. There may be one more, in terms with

marriage and celebrants that perform marriages.
J: so that's an exception? That might argue against you
AN: sex was always used in ref to marriage because of Bellinger.
J: so this would be an exception
AN: yes. But gender recognition does not change sex in the EA.

AN: Talking about legal sex, which was created in the minds of the makers of the EHRC. A GRC allows you to change your birth certificate but nothing changes about yourself - your biological sex. It's not about changing sex. It doesn't create a 'legal sex' which the other side is

trying to say
AN: what has changed is what the certificate is telling people about you. It is just a certificate with different information on
J: does it look like a standard birth certificate? Would anyone know the difference?
AN: I suspect not. They want to keep the GRC

private for some reason
J: If someone was presented with a birth cert, it would look the same?
AN: after a GRC it's a short form birth certificate but would say M or F...I think
AN: sex remains a biological fact but the cert says something else.
J: it's very difficult. If someone

sees a birth cert - the person presenting the cert doesn't actually change sex. But the cert looks as if they have
J: this is a shorthand?
AN: On the other sides reading of SSS then this covers people of the bio sex and those with a GRC. In a hospital a pregnant woman with a GRC

- would they be sent to a male ward?
AN: the idea that this cert changes everything, is wrong. The cert don't give you gender reassignment protection - you can have that anyway. The cert doesn't matter.
J: The PC of gender reassignment covers the whole process - living

as the acquired sex
AN: there is no need for any change in appearance or surgery or anything at all for one to be covered by the gender reassignment protected characteristic. Whereas the original docs were set out with the idea of surgery etc. You now don't need proof of gender

reassignment (surgery).
J: sorry for interrupting you - I hope I haven't put you off track
AN: The EHRC say it's within the right of a sovereign government to make their own laws. But this still doesn't actually change a person's sex. People who were medically diagnosed with

gender dysphoria are able to apply for the certificate - this shows that this person has the protected characteristic of gender reassignment. However this doesn't give this person protections under sex discrimination.
AN: The GRA relies on the EA - but the other side say it also

relies on previous enactments
AN: If we look at some of the legislation which on reading against me - we then have the problems with reading in legal sex instead of bio sex which was intended. For eg the abortion act - this is a provision which refers in terms to women

[Reads details of Abortion Act - AN emphasises the words 'pregnant woman']. As we've seen on the EHRC that would not cover Freddie McConnell as he is considered to be a man.
J: sticking with Freddie McConnell. He was pregnant. If he had sought a termination of the pregnancy - you

say that these provisions wouldn't apply to him
AN: No, that's what the other side would say.
AN: On my reading - you can't get pregnant men. You can get pregnant women who get a GRC but they are biological women. The other side that they are a pregnant man.
J: you say that the

absurdity in the respondent's approach this construction would exclude the women with a GRC. Could one do the same with the GRA - read into it in different ways.
AN: you do have read into these. If there is a nonsensical reading then a reading down would make sense

What I'm saying is that their absolutist reading of the act means that there are circumstances like the pregnant women example
AN: The surrogacy act wouldn't apply to a woman with a GRC. There is a prohibition of placing a foetus into a woman in some circumstances.

By their reading this wouldn't apply to a woman with a GRC because it would be placing a foetus into a man.
AN: more recently - there has been some issue about whether women have the right to be forensically examined only by another woman. In the 2021 act regarding this,

gender has been changed to say sex. In the EHRC the victim's rights to a ss exam would be upheld even if she was examined by a man with a GRC. In this case sex absolutely means biological sex. The EHRC and the Scot Gov dispute this. It's not only absurd, it's obscene

AN: The GRC does not change a person's sex. For other statues it does not. The guidance which Scot Gov has produced is unlawful. The GRA is of it's time in 2004 when there was no ss marriage but things have moved on. It has an effect to state's records; pensions, social security,

inheritance etc. The workable reading of the act is that woman mean bio woman, man means bio man. Those are my submissions - sorry for over-running
J: not at all. It's been a very interesting discussion
AN: could I 'bank' the rest of the time for a later time
J: well we'll see

AN: Can't blame me for trying!
J: God loves a trier!
J: We will continue
J and SGLD discuss docs
RB (respondent's barrister): [missed] the court said that woman in 2018 act is the same as in the EA - female of any age.

RB: this brings into context the problems with this. I will address those points in detail but first..this case is about the lawfulness of statutory guidance re appointments. What if a person was to come with a birth cert, either from birth or from GRC? What is someone asked that

person to provide evidence of being a woman. Those people might well produce a certificate. Would they be acting unlawfully? AN says they would not be able to have provisions under the EA. I say that they would be. The certs provided would say they were female. This is about the

2018 act but I will refer to EA too. What this isn't about, is the process of getting a GRC whether that should be made harder or easier. It is not about the bill which has been introduced to Scot parliament or the debates about the bill. This is about the effect

of a GRC once the changes are made to the GRA. This isn't about trans-inclusive spaces - about whether they are lawful or a good idea. It's not about whether GRC should be easier or harder. It's not about confusing or undermining the PC of sex orientation

That PC remains whatever sex that person is or whatever sex they are attracted to. They are not to be discriminated as such. Whether it's opp sex, same sex or both sexes. It's not afforded to the object of that person's attraction

This is not about taking away rights. Those who share the relevant PCs will have the protections afforded to them. Just to pick up the intervention from LGBA - this is not about those who made assault or predate or harrass women. The criminal law responds to such unlawful acts

The inner houses was not asked to say what was meant by woman in the EA. It was not asked to say whether a person who has a GRC is a woman. It was asked to determine if the definition of woman was beyond legislative competence and executive competence.

[Missed]
RB: In inner house's opinion once can surmise that it would not have related to reserved matters were Scot Gov to legislate to [missed] a woman being appointed to public boards. The inner house petition 'woman' would include those with a GRC in acquired gender of a

woman as well as bio women
J: this is helpful context
RB: my understanding is that there is no challenge to the act itself
J: AN is nodding
RB: It might be useful to look at FWS inventory

The court recognised that it was not deciding if a person with the acquired female gender under the GRA was a woman according to the 2018 act.
J: it's clear that it was not the focus of the discussion
RB: the court said nothing about 'woman' not including those with acquired

gender of women with a GRC
RB: Re: FPFW in outer house. [cites] In answer to the sex question includes those with a GRC. Re: Inner House there is a sentence which says 'we don't think the question 'what is your sex' means what is on your birth certificate or your GRC.

Re the census they didn't think it should be combined
J: it was synonymous?
RB: It does certainly point to in FWS they were not determining what AN says they were determining
J: It's almost 4pm so I think this is a good time to break. We will start again tomorrow at 10am

@threadreaderapp please unroll