Neither I nor @ForWomenScot are “pushing” for sex to have both an ordinary and a technical meaning post GRA. We’re recognising the reality of it as a matter of doctrinal law and arguing that sex in the EA engages the exception to the GRA and so takes on an ordinary meaning.
Denying the fact that s9(1) provided for an acquired gender which changes sex in law for some purposes will not stop it from being true. The question here that will be decided by the Supreme Court is whether that provision applies to the Equality Act.
There is no room in this case to argue that acquired gender does not change sex, despite the clear textual language stating that it does. Human rights arguments will allow you to argue that this shouldn’t extend to the EA (which I make) but that’s all this case can address.
This case requires careful work in statutory construction. The statutory framework is complicated. But you cannot introduce a distinction between acquired gender and sex that the GRA does not have. The Act states unequivocally that an acquired gender changes a persons sex.
What we can do as a matter of textual analysis is show that s9(3) limits the scope of 9(1). We can then argue that 9(3) is engaged in the context of the Equality Act and that therefore the deeming provision in 9(1) does not apply.
That argument is one that looks at the caselaw on statutory construction and the statutory text, crucially without ignoring the part of 9(1) that states in black and white that an acquired gender changes sex for some legal purposes.
Neither @ForWomenScot nor I are doing this out of some ideological commitment or out of a failure to take women’s rights seriously or because I’m male. It’s because that is the accurate interpretstiom of the law in our view.
• • •
Missing some Tweet in this thread? You can try to
force a refresh
A long 🧵on the meaning of sex in UK law and how this has changed over the last few decades. This draws on the caselaw that I rely on for my forthcoming paper in LQR on this topic: deliverypdf.ssrn.com/delivery.php?I…
Sex once had one meaning, fixed to biological sex. References to male and female or man and woman reflected ordinary meaning without any technical legal construct, except one: where sex was indeterminate the most 'predominant' characteristics determined sex
This was the rule in Roman law (Decretum Gratiani, C. 4, q. 2 et 3, c. 3 § 22), Common Law (E Coke, Institutes of the Laws of England, Institutes 8.a.), and Scots Law (Stair 1.4.6.).
It didn’t make any finding of fact that there was systematic targeting of trans people, it didn’t say that trans people were presumed to be gay. The history is complex but there are examples of those arrested for cross-dressing being released and given a permit by the Gestappo
There is historical evidence of the Gestappo treating trans people very differently depending on whether they thought their gender expression was motivated by identity or “indecency”/“deviancy”. If there was evidence of homosexuality they were treated far worse.
Read the history in this thread. Two female-to-make cross-dressers; both arrested and questioned, one admits to engaging in homosexual sex, one doesn’t. The former is treated far better and even allowed to change name to Gerd.
Robin has again attacked my character while claiming that my repeating word for word what senior judges have said about the law in this area is clearly incorrect and would lead those who followed the caselaw to clearly engage in unlawful discrimination. Robin cites no caselaw.
Let’s start with the claim that it would clearly be unlawful for service providers to do anything other than operate on a self-ID basis. That has been rejected consistently by courts for decades.
In Croft v Royal Mail the Court of Appeal held that being protected under gender reassignment does not automatically confer a right to use opposite sex toilets:
Since it became a topic of contention over the last few days, I thought I'd do a thread explaining some more detail on the law relating to single-sex toilets. @ToniaAntoniazzi was attacked for defending current Labour policy that reflects the law. More information below.
First, it's worth having a look at an earlier thread that I did setting out the legislative framework and some of the issues that were unaddressed in the run up to the recent Inner House decision in For Women Scotland:
That decision has now been provided and it conformed once again that the use of female-only toilets is not on the basis of self-ID under UK Equality Law.
India blocked me before tweeting this so I assume didn't want an answer to these questions but since anti-discrimination law is one of my areas of expertise I'm happy to provide some anyway.
The GRA sets out a process where one can be recognised as legally a member of the opposite sex for many purposes. The Equality Act protects people from gender reassignment discrimination. None of these override the exceptions in the Equality Act that permit single-sex services.
Schedule 3 sets out clear exceptions that permit exclusion on the basis of either sex or gender reassignment if one has established a single sex service"
This has been a crazy year for me so I thought I'd do a round-up of publications, starting with the blog post that was technically from last year but which kicked the whole thing off. Here I floated the possibility of a s35 Order to block the GRR Bill:
In January, I published a long-form policy paper setting out the case for making a s 35 Order, with a forward by Lord Keen, former Advocate General for Scotland: