Thread by @tribunaltweets2

This is thread 2 of AM session for 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.

Resuming shortly

AN: EHRC letter set out provisions skewed if cert of sex rather than actual sex. I say solved if petition is upheld.
Section 195 deals with women's sports. +ve action in workplace section 159. Women only shortlists section 104

Significantly notes to Eq Act say under occupational requirements for women: a counsellor working with victims of rape may have to be a woman and not a transexual person even is she has a GRC

So clearly women is actual sex. GRC makes no difference in occupational reqs for women

We then have protections for women pursuant to an enactment. Health & Safety reqs affecting women. Women's freedom to form associations for and with women. Pregnancy and maternity already seen highlighted by EHRC

Clear water between. SG says that's just about pregnancy and could cover FMc even though its for women

Right to access accommodation for women only in hospitals and prisons etc is set out in Eq Act. Again SG says there is a GR exception applied but that only make sense if the notion of sex is actual sex rather than cert of sex

Direct and indirect disc. Collection of data with due regard to avoid discrimination. I have highlighted these provisions bc we know that women were discriminated against legally. Denied equal pay, denied work if married

Denied right to attend university, denied being doctor, judge etc , denied peerages. This is why it makes sense to have provisions for women against the biological facts.

But also sociological facts. Women have lionesses' share of running households and rearing children. Also the objects of violence against them by men. Im not going to start mansplaining feminism but that is the context against which the Act has to be understood

The idea that women are defined as females of any age should exclude some women and include some men -we would need the clearest provisions that that was the intention and we find nothing that made this case. Strong counters.

Current JR challenge to GR reform. The UK government erred in year by following the Lord Ordinary. Therefore, upheld SG submissions. UK got it wrong by upholding. We say everyone got it wrong and proper interpretation is as put forward now.

Its in another process but it does rather cast doubt on the strength of SG position. Two horses in two different cases pulling different positions. May be political reasons but doesn't look good.

There isn't ambiguity in the term women. Clear in the 4 corners of this Act: a female of any age. The case is not about ambiguity in term women. Basic error is that SG dont refer to section 9 three.

Section 9 one is not this freestanding principle that SG tried to say. The court made a distinction that marriage is separate case - immigration, Pensions etc. This may demand a rigid definition to be applied to sex ie actual sex.

These example occur status or important rights. The Eq Act concerns important rights! So same rigid definition is clear straightforward and workable. Not talking about implied repeal. Dont need as section 9 three already allows exception to 9 one.

SG dont make ref to objective etc of Eq Act - all they deal with is Section 9 one of 2004 act.

They refer to the terms of Sex Disc Act but I draw the court attention to case of Cusack[?]. J: You said we are not talking about implied repeal, so are you departing from ground of appeal 4?

AN: No Im not. Im just saying that express words in this later statute are definition of women. General principle is later statutes repeal earlier statutes if inconsistent, so be it.

Explanatory notes on GRA. Respondents say the 2010 Act reforms and harmonises equality law. We agree that was one of the intentions was that 2010

Act would do that. We know that Sex Disc Act did maintain a distinction between GR disc and Sex Disc.

2010 Act :"women *means* female of any age. Sex Disc Act: "women *includes* a female of any age. Includes can sometimes mean a closed list but then you clarify. By contrast word means is not ambiguous.

S11 is a new provision and section 212 explains what is meant by wording. Para 660: While a key objection of the act is to present disc law in plain language... sometime necessary to make clear...

So woman means a female of any age and to be used that way throughout the Act. The order SG put forward re GRR bill.. they say a full GRC has the effect of changing the sex that a person has as a PC for the purposes of the Act... This is wrong. The intention of parliament was to

give one definition. Health boards etc have to pick up Act and think through which definition of women etc does it include GRC and when.. A nightmare. Not the intention. Occams razor applies. Word sex does not have multiple meanings. The word woman doesn't sometimes or any time

include males of any age or exclude females. SG say at para 15 although the maternity provisions are afforded only to a woman and not male with GRC they apply to a woman who is treated unfavourably because of pregnancy by *her*. SG say predicated on pregnancy. All capable of

being applied to eg FMc. Its right to assume that FMc who becomes pregnant after GRC should not be excluded from Pregnancy PC -we agree but how do we get there.

FMc is by no means unique. SG have to either accept that woman means actual sex. Or they have to read in protections for pregnant men into provisions of statute when they are not there.

They'd have to write 'pregnancy relating to *his* etc...

*His* pregnancy. etc..
According to SG if PC is certificated sex, then FMc excluded from protections for women in childbirth (gives ref)

J: Intro to 13.6 refers to PC of Sex not Pregnancy?
AN: Historic way in which Pregnancy & Maternity came into law. Cannot use an ill man as a comparator, P&M is not an illness etc.
J: Possible that woman is intended to mean 'somebody who is pregnant' in section 17?

AN: No definition is in 212. Court would be writing in a definition. Only way to make sense of P&M provisions is where sex means actual sex not cert sex

The single sex provisions only work if sex means actual sex. O'wise you cannot say I want to keep this single sex by excluding everyone with a GRC - as then taking out some people eg male with a GRC in a woman ward. Not bc of GRC but because here you are male.

The techniques needed to make basic provisions function are so ridiculously byzantine and convoluted - cannot be right.

Section 3. GRC changes sex. Only where specific provision to that effect in statue. This almost seemed to find favour with Lord O. Its a bad argument. Not constant with this court looking at context of statue w/o making presumptions.

Abortion Act regulates women's pregnancies but not FMc according to SG. Surrogacy Arrangements Act 1995, women not genetically related. Again SG would exclude someone like FMc so a woman with a GRC could get paid for surrgoacy (against provision of that Act).

FMc could run a coach and horses through provisions of that Act. Victims and Witness Scotland Act 2014. Victim of SA. The sex of any medic who exams woman. Amend to that act which prev. said gender. Sex was put in in 2021. So SG reading is that a woman victim of SA

is set aside by a legal fiction that a certificated sex of a medic trumps the concerns of women. Seems obvious that cert sex should not be trumped by actual sex in that case.

SG refers to provisions around sexual orientation provisions. The legislation is predicated that an opposite sex couple remain so, they dont magically become same sex. If they did it would be caught by provisions of SO discrimination so they carved out exception for opposite sex

if one had GRC so different from same sex relationship. Relies on reality of sex not being shifted and changed.

It is accepted that religious marriage can remain a prohibition against same sex marriage. So this is not supported of SG claims at all.

My conclusion: provisions for women must remain for all women incl eg FMc. Possession of a GRC will not involve removing provisions for females of any age. This contrasts with SG position which involves compromising women's rights. Granting them to males with a GRC and excluding

women with a GRC. Upholding the reclaiming motion will leave GRA to operate as Parliament intended.

GRC allows birth certs and death certs to reflect acquired gender but given we now have same sex marriage and = pension ages, GR now has a symbolic value. In any event, symbols have an enduring value so symbolic value is not to be knocked

SG approach means carefully balanced rights for women lost, compromised and made unworkable. I renew my motion. Those are my submissions.
J: Thank you. Adjourn for lunch and resume at 2pm.

@threadreaderapp please unroll