Thread by @tribunaltweets2

Good morning, today we're tweeting the appeal brought by For Women Scotland against the Lord Advocate (Government of Scotland) in relation to the Scottish Government's statutory guidance for its Gender Representation on Public Boards (Scotland) Act 2018

tribunaltweets.substack.com/p/judicial-rev…

For Women Scotland sought a Judicial Review of the guidance which was heard in November 2022

Our Substack has our tweeting of that hearing and links to press coverage of the case

tribunaltweets.substack.com/p/for-women-sc…

In December 2022 the judge Lady Haldane ruled against For Women Scotland, and agreed with the Scottish Government that someone with a Gender Recognition Certificate stating them to be female should be considered female for the purposes of the Public Boards act.

Today For Women Scotland are appealing that decision.

The Scottish Courts service has a comprehensive outline of the case (and a link to watch the hearing live, once it starts at 10:30) at scotcourts.gov.uk/the-courts/sup…

Abbreviations:

FWS For Women Scotland, appealing (reclaiming) the December 2022 judgment by Lady Haldane

AN Aidan O'Neill KC, representing FWS

SG or ScotGov the Scottish Government

RC Ruth Crawford KC, representing ScotGov

The appeal will be heard by a panel of three judges:
The Lord Justice Clerk Lady Dorrian
Lord Malcolm
Lord Pentland

We shall use the abbrev "J" for all 3; if they are conversing with each other we shall indicate this by "J1", "J2", "J3"

We expect the hearing to begin at 10.30

[Hearing begins. Judge discussing remote access for submissions with AN. AN intends to finish at lunchtime. Judge asks for 10 min break at 11.40]

AN: I formally adopt grounds of Appeal. Rather than read through note of argument I want to focus on position taken by SG I their note of argument. It's as to whether SG has the law wrong on the guidance

AN: the new guidance says that women represent over half population of Scotland and right women are part of decision making in public bodies. Intention was to help address underrepresentation of women

AN: They say there is no definition of woman set out in the Act from April 2022 therefore woman in the act has definition in EA10. Then says, now EHRC said shouldn't be adding addition, but they said in addition re GRA, when GRC issued to that of a man, the persons sex is female

AN: and same for a female with GRC is a man. It's as if there's been a dazzlement in what seems to be a general principle but not seen broad execptions. From the start the stat guidance is incorrect in matter of admission.

One principle they rely upon in changing ones acquire gender ris something different. That's the core of the sub, the clear blue water that exists between the parties.

AN: common ground ground the 2018 act intended to be in favour of women. That's permitted under EA10and allows for positive action workplace measures for those who share a PC and where participation is disproportionately low.

AN: EA10 allows for that and for people who share PC. That was the question of this courts decision FWS number 1. Was the positive actions measures set out in 2018 asp made in favour women as it claims to be? Court found it had not been bc definition of what a woman was

included person with PC of GR. Slightly complex provision and in reality means that women, the protected class under these measure included some women with PC being female but excluded women who had PC of GR and living as a man whatever that means

AN: and we're proposing to undergo and had undergone process of becoming male. Those women were excluded but at same time some men were included, men with PC of GR and living as a woman and undergoing process

AN: that was confusing women defined by sex and those defined by PC of GR. So result was this court held that redefinition was beyond competence of SCottish parliament and was struck down. Meanwhile original guidance was also struck down when said woman includes person with GR PC

AN: thos courts decision are useful to highlight as have become controversial. Some of what was said was orbiter not binding. This court in FWS1 [read: PCs of sex and GR...]

AN: [cont reading] this is crucial part ["provisions for women in thos context exclude males"] This was not part of the ratio but I say it is part of the ratio even with section 9 it's what the law actually is.

AN: [reads]
J: forgive interruption. I'd be interested in what we're to make of passage in second case from FPFW. Para 19 in bundle. Can you turn that up? [They sort out page numbers]

J: It's the start of analysis and decision and towards the end [reads] I'm finding it hard to reconcile that submission with what you're taking from earlier case

AN: that's an assertion of what was said and not what I adopt. We do not say there is a default position that sex , but that within definition of sex in EA FPFW was not concerned with. The only sense of the act is if biological definition is maintained

and nothing in FPW is contrary to that. (Missed, sound echoing)
AN: look at context in EA10 which is safety of women. All of the stat guidance we're focussing on, What does it mean for the purposes of Equality Act 2010

AN: I was referring court to para 38 of FWS case and noting that this court said the case Euro court of justice and HOL do not voch sex and gender be conflated. This is important as 2010 act that maintained PCs and that GRC limited under GRA

AN: [reads] that's where we were and original stat guidance struck down. Basically sexand category of woman was one which by definition excluded anyone male. What I say it's a clear finding. The SG new guidance say that the 2018 asp actions still include class of men and

AN: excluded class of women
J: sorry to interupt. Can I just clarity. The heart of your argument is for purposes of EA10 sex equals bio sex. Women in category of women can only include those born and remain bio women
AN: I say if you're born a biological woman you remain one

J: What I was meaning was that would still include ppl who weren't born women but were transgender and living as men. Ur argument is they remain women for EA10
AN: yes. It's what is been referred to as the Freddie McConnell issue. Becomes a disputed point.

AB: this was a bio woman and obtained GRC which was male however that person then got pregnant and gave birth. The partic issue in court was whether given that FM was to be male, whether he was birthing parent to use that dreadful term,

his identity should be recorded as father not mother. The court said no that general principle didn't apply with section 12. The case raised broader issue as to whether person such as FM, not isolated or unusual case, who have GRC and get pregnant and give birth would they be

entitled to provisions or pregnancy and maternity? I say they do. As bio women who have become pregnant and give birth with maintain provisions given to women nursing infants. That's very much our case and central to it

AN: people suggest when they get GRC no longer have protections of sex discrimination as if they lose their sex. They don't. FM should have protections of women and GR under EA10. Similarly male persons with GRC will remain having possibility of claiming sex discrimination as men

as well as GR. If you change comparators then it messes up finely balanced provisions in EA10.
J: What happens if someone's sex has been wrongly recorded at birth.
AN: that's intersex and that's entirely different from EA10. They're called DSDs, chromosomal issue and only

Possibility to be recorded as male or female. We know that can be changed for medical science. It's easy to go down a rabbit joke and I've tried to use plain terminology. I'm sticking with that terminology so when I say

there's 2 issues what sex means. One is whether certificated of sex and what that says and if you have GR then BC gets changed. SG are saying certificated sex is used and I say no, I say actual sex because BCs can be altered.

J: in FWS we were discussing different issue. Why are u saying this is part of the reasoning of the court?
AN: this court knows its ratio and decision, the SCottish ministers dispute that. It doesn't matter to me when we look at section 9 it is an accurate observation of the law

(Missed, having )

AN: [on SG] they've misunderstood PC of woman and not even had proper regard to GRA they rely on section 91 but ignore 93.

[Trying to keep up with few technical difficulties and extremely fast to keep up with]

J: I've just reflecting on exchange a moment ago with other Judge. Suppose u have employer who employs 20 employees, 10 are women and 1 of the women has had a GRC reassigning her as a woman

For 25 years... born a man, GRC,reassigned as a woman working alonside women for 25 years. Let's assume employer is discriminating against employees the individual with GRC would have no right to complain about being discriminated on being a woman

AN: Equality law is not uncomplicated. There's such a thongs as associated and perceptual discrimination and that comes up in Sexual Orientation claims and unlawful. Main cases have been brought by straight men and have been taunted with homophobic insults

AN: could conceive of person who was male and has GRC and who was treated as if a woman and discriminated on that basis but not bc sex had changed.

AN: trying to work how EA as a whole works. [AN on GRA now and 2 issues which were incompatible with human rights] The GRA is about what state does to individuals and doesn't impose non discrimination on private individuals - alluding to their acquired gender is not their sex.

Basically EA is much more broader and constitutionally more significant than GRA and it'd be very much tail wagging dog if GRA was intended to premodify EA. I say it can never have been invented certificated sex trymps actual sex.

AN: I want to turn to EHRC. EHRC now want no further part in these proceedings. I stead we now know the EHRC has radically shifted and made plain in letter to UK gov and asked for guidance on how EA will work re this case.

AN: the EHRC is not offering own interpretations of the law. That's why it's useful to look at the letter bc it sets out and summaries views with considering how EA operates. It'll give better idea of broader functioning.

I'd say don't uphold Lord Ordinary there's no need for change. The letter uses the term legal sex. This uses biological sex which is also misleading like non biological washing powder. It talks about trans men and trans women.

That's why I say stick with certificated sex and actual sex. Shouldn't use words not in the act like trans man etc. Lady Wise did use terminology like women who are not TG, trans men, whole series of terms not in legislation.

AN: Lord Ordinary said trans women were another category of people. That's the point, they're not a category of people. That's what court said about terminology. Interesting in this case the lady also uses language not in the act. [Reads]

AN: [reads about 'biological' being omitted in EA] They use language carefully and they don't use biological woman because woman is woman. There was never any ambiguity in the word woman.

AN: [reads about 'intention' of Parliament in EA] we look at letter of EHRC. This was advice formally requested by UK gov to monitor effectiveness of law.

AN: [reads aspects of the letter] I've never seen that before, ive never seen the term legal sex used. [Reads] so they basically say certificated sex is what is meant in EA10. Goes on [reads]

AN: I say it is defined as that and the problems they've identified are not problems if u uphold the motion. Pregnant and maternity are in footnotes [reads]

AN: If sex means as Lord Ordinary then no sexual orientation some trans women become legally lesbians and some women gay men. That's what they say if use certificated rather than actual. A womans bookclub, may not be big issue, there's women only spaces for good reason to assist

AN: if a man has a GRC reassignment to female would let him in allthose associations. Positive action, trans woman with GRC can benefit from women only shortlist parliamentary seat. Trans man cannot benefit from that

AN: occupational requirements and employers can restrict position to sex. Wardens in women's prisons for women but not to trans men. A hospital might want several women's only wards. Starting point is man with GRC can access women's service

AN: so at present a trans woman can bring an equal pay claim and a trans man with GRC can not. Biological women it would mean it stayed with women. That would make sense bc historically women are discriminated against.

AN: They haven't realised the impact, its more complicated than that. Crucial thing is to define your group and classic discrimination was height requirement for policeman. That can be challenged as indirect as though doesn't stop women applying most women will be under 6ft

AN: It completely seeks how sex discrimination works. Indirect SD is a big thing.
J: perhaps suitable time to break
AN: just want to read letter [reads EHRC letter] it's this court doing this consideration now. That's it.
J: short break.

[Court rises]

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