Thread by @michaelpforan

I can’t respond directly to Robin since we blocked each other after the whole accusing me of being personally responsible for the murder of a teenager thing. I’ll just say here that if this finding is obiter, it’s bc it’s already settled law that trans women without GRCs are men

The central legal question to be decided in this case is what the meaning of sex is in the Act. The court here held that sex is biological (or birth) sex unless modified by a GRC. This is building on the central holding (ratio decidendi) in FWS 1 and Green v SoS for Justice

In Green, the central Q was whether a male-to-female trans prisoner without a GRC could sue for gender reassignment discrimination bc of being treated equally with male prisoners or whether gender reassignment discrimination rules demand Green be treated equally with women.

It was not an obiter comment in that case when the court concluded that Green has no claim to make here because, without a GRC he remains a man in the eyes of the law:

If anything the obiter comment in Green was the statement relating to whether, if Green had a GRC, that would change anything. That comment is obiter but has been affirmed as the correct interpretation of the law according to the court yesterday.

So Robin is just wrong here. The entire claim in Green was direct discrimination on the basis of gender reassignment and that requires you to assess who the comparator is: if the comparator is a woman without GR bc Green, by identifying as a woman is one, then Green would’ve won

But the court was clear that Green was a man. Bring protected under gender reassignment does not change your sex, your sex remains your biological sex and so the correct comparator is another man who doesn’t have GR as a protected characteristic. This is not obiter.

Similarly in FWS 1, the central issue before the court was whether it was an error in law to claim that “woman” for the purposes of the Equality Act means anyone who identifies as a woman. The court addressed this point directly:

It is against this background of clear law that if you don’t have a GRC your sex is your biological sex that we get FWS2 and now FWS3. Having being told clearly in FWS1 that woman doesn’t include anyone who identifies as a woman, the Scottish gov issued new guidance.

That guidance was that the definition of woman takes on the meaning in the Equality Act (interpreted in Green and FWS1 to exclude males without GRCs) and explicitly claims that a GRC changes sex in the Act. The central Q in both FWS2 and now this appeal is whether that is correct

The court here was addressing the one Q which was genuinely uncertain: whether sex in the Equality Act is modified by the Gender Recognition Act to class those which GRCs as the sex on their certificate. If this comment is obiter it’s only bc it’s a point of settled law already.

Even if one believed the astonishingly unintuitive claim that every one of these cases were making obiter points when interpreting the meaning of sex for non-GRC holders, that means every obiter comment on this issue goes against Robins interpretation.

There has never been any case where a court has even hinted that Robins view is correct in law. Nothing. The only commentary we’ve ever gotten on this is that without a GRC your sex is your birth/biological sex.

So it’s quite honestly pretty rich to see Robin claim that my previous analysis on this issue has aged badly. Robins comments were born incorrect. They don’t need to age to turn bad.

I don’t think my comments in that piece aged badly at all. I was clear where the ambiguity lay and wrote without accusing my interlocutor of being an ideologically motivated hack with a mediocre grasp of the law and a propensity to hurl insults rather than provide insight:

But don’t take my word for it. Feel free to read the piece itself and judge for yourself:

scottishlegal.com/articles/micha…

Finally, on the AEA point I’ve addressed that directly before as well. The case does not hold or decide anything relating to how a proportionality test should be conducted or whether it requires a case by case analysis over an assessment of the proportionately of a general policy

https://twitter.com/michaelpforan/status/1627721466165723150