Thread by @tribunaltweets

Good morning. Today we cover For Women Scotland v The Scottish Ministers being heard at the Supreme Court.
"Is a person with a full gender recognition certificate which recognises that their gender is female, a "woman" for the purposes of the Equality Act 2010?" #WhatIsAWoman

Abbreviations
Claimant:
FWS/C - For Women Scotland
AO - Aidan O’Neill KC, Barrister
SK - Spencer Keen, Barrister

Respondent:
SG/R - Scottish Ministers & the Lord Advocate General
RC - Ruth Crawford, KC, Barrister
LI - Lesley Irvine, Advocate

J - all Judges

Intervenors-Oral
SM - Sex Matters, a UK human rights charity
BC - Ben Cooper, KC, Barrister
DW - David Welsh

EHRC - Equalities & Human Rights Commission
JC - Jason Coppel, KC
ZG - Zoe Gannon

Written
AI - Amnesty Int.
SL - Scottish Lesbians, the Lesbian Project and LGB Alliance

Frequently used terms

GRA - Gender Recognition Act
EA - Equality Act
GRC - Gender Recognition Certificate
LS - legal sex
S - biological sex
FAP - for all purposes

The live stream is found
It begins 10:30am, cont'd tomorrow
#WhatIsAWoman #SupremeCourtsupremecourt.uk/live/court-01.…

The live stream has started.
AO: introductions he and SK rep FWS
Written case is available and FWS support SM's submission and the joint sub from Scottish lesbians and others.
AO: asking to uphold the appeal. FWS dispute SG arguments and AI's intervention.

AO: AI make no ref to prisons or international law on the prison env, or for other protections.
As for EHRC, FWS say much is valuable esp on the unworkability of the EA if sex is LS is used but disagree with the conclusion.
FWS say certificate sex is just wrong in this context.

AO: in the EA sex just means sex in the ordinary meaning, as used by ordinary people is what is meant. Quoting a case. meaning should be constant and predictable. The ordinary use achieves that aim.
AO: does the legal fiction of S19 of GRA that the issuing on a GRC that persons

sex changes for the purposes of the EA?
S91 subsection of GRA states change is For All Purposes FAP
SG say birth certificate, if changed by obtaining a GRC, is the sex you are. Your most recent cert is the one to be used for EA purposes.
Woman is from birth or with a mtf GRC

FWS approach as ordinary meaning - subsection 91 is subject to provision made in other sections 9-3 for example, or subsequent law.
Ordinary meaning is determined in utero by ones body. It is bodily reality and an immutable state.
In EA therefore a woman remains a woman whether

she is protected for Gender Recognition or not. and vice versa.
Does 91 triumph in relation to EA, or the 9-3 provision, override it?
AO: FWS state the gov cannot have meant to create nonsensical outcomes. The only way for EA to do the work intended is if sex means sex.

AO: context is all. Context is concept of Patriarchy, I will be mansplaining patriarchy to the court. Women do not start with or maintain a level playing field.
Women was a form of leganl disability - the law used to say women cannot be trusted to look after their interests.

AO: Couldn't own property etc, needed a male overseer, were excluded from professions and the vote. Law has been changed to right historic injustice. We now live in a world where all discrimination (lists PC's) is covered by the EA. Everyone can claim discrimination, but the core

AO: the reason we have the EA is because of historic inequalities. 1873 case quoted page 968-9, could women be admitted to Edinburgh Uni. Women had never been admitted, neither had many other minority religions/heritage. There was no legal principle to exclude, no test or

AO: foundation, but there was in place law to prevent women. (Latin!). Women are debarred from professions etc and to a great extent that had always been the law.
AO: When looking at GRA, EA, Boards law in Scotland, the court should look at the incidious pull towards patriarchy

AO: shouldn't be any interpretation of the law that doesn't hear the voices of women. Omnipresent patriarchy can undermine even the noble-ist intention. Please keep in mind. Tells joke and reminds court most people involved today are men. Paraphrases Simone de Beauvoir - one

does not become a woman.
AO: Baroness Hale - one mans commensense is a womans idiocy. We must remember this. Back in Edinburgh story from 1890's the Senators allowed women in to study medicine, in female only classes. This went to court, found to be ultra varies (?)

AO: Quotes man saying women shouldn't be subject to the hard work required. Common law meant women were not suited to it, you'd have to let them into divinity and that was too far. Uni's once had constituencies, if you were a graduate, you could vote, started including women

AO: raised questions about women actually voting in elections. By virtue of using the word Person in legislation, it meant women could vote. Quotes: it is notorious that this right of voting is limited to men. It is a dangerous assumption that law is so precisely accurate

that you can pick a few words and read lots into it (arguing against women voting on the basis of the word person). This is apposite for this case.
AO: More arguments of old that women were not persons as it was a legal disability to be a woman, they can't have meant it.

AO: an old argument that married women could not be advocates as they wouldn't not be able to form a contract of their own. Reminder of cases about married women were sacked if they were teachers. Reminder of case around paying women and men the same if work was of = value

AO: This was argued against vigorously. In each of these courts/cases the statutory construction is struck down, multiple cases unequal pay, sacking married women, not persons etc all lost originally. Women's rights before court has fitted with patriarchal views if possible.

AO: so that is the context. The SC itself accepts sex equality is still a work in progress, Baroness Hale said we lead women's lives, we have no choice. Basic truth we live different lives. Why is debatable, but that they are is not. Women have fought gender roles. Equality's WIP

AO: Even judges aren't immune to bias. Sitting with Lay assessors allows judges to think about their own biases. Sonia Sotomayor said she hoped she would reach a better conclusion than a white man who hadn't lived her life (?). Others said we need the perspective women can bring

AO: to judgement. Lord Hodge (sitting) started in the first year Uni that year women outnumbered men in the law school intake. Yet where have they all gone? Justices still don't reflect that. How long do women have to wait for parity on the bench? It is important, variety of exp

AO: All of the justices in the old cases mentioned were privileged white men. This hadn't changed hugely since 1873. Those courts said women aren't people, no right to expect security of employment, the vote etc.
Undermining of women and their achievements. Trust in the law

AO: understandably low. Ironic AO is a man and so is SK. SM rep by men and EHRC by a man. While SG rep by women. Presenting submissions here are mostly men. AI and SL are rep by women in writing only.
Why so many men instructed? Even Rape Crisis Scotland were rep by men recently

AO: even women's groups feel they would be best rep by men, it implies insidious patriarchy. If you need a reminder of patriarchy look around and inside yourselves. It permeates these issues including the legal arguments today. Same sex attracted women when young experience

AO: male gaze and ROGD is offered as a way out of it, from a feminist angle can be seen as a capitulation to patriarchy. When a women goes to a rape crisis centre and is met by a man without a certificate, though has surgery is told to reframe her trauma, that's patriarchy

AO: if a woman is treated by a male Dr with a cert and objects, she's told it's transphobia. (...) When a woman is in court and has to seek permission to call her assailent a man and say him, that's patriarchy. When women have to play contact sports against males with/out a cert

AO: they can't complain, that's patriarchy. When comms avoid the word women and say people with cervix, patriarchy. Women who bleed. When breast feeding is chestfeeding, that's patriarchy in action. To not offend males with or without a certificate. Law has attempted to change

AO: woman being a legal disability. The EA was to counter common law, to bring equality, to protect womens rights and end presumptions of patriarchy. Women were told you can't, because you are a woman - bio determinism. Biological denialism now means women ....

AO: disempowers women. In this case when GRC acquired is female, insist it gives rights of accomadation in womens spaces, to benefit from positive actions for women and to apply for women only jobs - it means men get rights intended to be only for women.

AO: to agree is to capitulate rather than confront patriarchy. If the certification process takes away rights to those things, spaces, jobs etc to take away AND pregnancy and maternity protections it is capitulating to patriarchy.
When hospital wards have to accept men with cert

AO: and exclude women with certs (saying they are men) women lose out. Women are told to accommodate mens claims - it is capitulating, not confronting patriarchy. This court should not uphold this.
Moving on, FWS case is also based on avoiding perverse outcomes. Shahid v SG

AO: SC said plain interpretation, rather than strained interpretation, to avoid absurd or perverse interpretation.
SG are asking for a meaning of sex woman and man which is strained. EHRC agrees. SG haver over the pregnant men question and so for one issue don't use LS but S

AO: they recognise the absurd and unjust nature there. Plain interpretation is needed. Perverse consequences, EHRC highlight. pg 398. If sex meant legal sex (LS) list of problems in submission, letter 3rd April worth reading. Page 686 - quoted at length in FWS case.

AO: Para 6 400-401 EHRC note LS leads to incosistency for same sex attracted people, in formation of associations, and safety/dignity of women. It impairs the proper function of EA. FWS agree. Also EHRC say 'jeopardises' the rights and interests of women. It is unsatisfactory.

AO: EHRC pg112, LS raise difficulties which are significant are becoming more so. Lesbians ability to associate is particularly impacted. The Garrick gets to vote to accept/not women, Lesbian associations have no choice but to accept men with a GRC. Patriarchy.

AO: Share the PC of same sex orientation is a reason for an association. EHRC say it is unfair that lesbians cannot. If you have a cert and LS is all, lesbian groups ...
J: says need help understanding detail of different associations listed in written.
AO: yes, will get there.

AO: A hetero man becomes a lesbian if he obtains a GRC as female. The EHRC maintain he is not a lesbian, FWS agree.
Impacts wards, rape crisis, DV shelters, prisons, segregated swimming etc critical for religious women and others. para 44 difficulties which arise from s91

AO: for single sex (SS) services. Para 27,1 person doesn't contravene sex discrimination rules by providing SS services if conditions met. So sex matters. 1. If physical contact likely and there's reasonable objection. If sex is modified, applicability is practically impossible

AO: LS is whatever ones latest cert says. eg Female victim (no GRC) of sex assault. Would have to be comfortable with a man with GRC in physical contact, but NOT ok with that same man if he did not have a certificate. It's absurd. Paperwork cannot determine the reasonableness.

AO: Condition is that SS service will be used by more than one person and one might reasonably object to others of opp sex. If men may be of either natal sex, it could be reasonable to object to a man, but not one with a GRC. There may be no diff in appearance between man with

AO: and without a cert. Not required to ask for cert.
J: what do you think of EHRC submission, if a transwoman with a cert is refused access to women's services, if treated as a woman in EA they have not been discriminated against as a woman?
AO: will come to it. It is hard to

AO: discuss unless we use plain meaning. J: yes it's difficult but we can. AO: not if we use the meaning - all laugh.
AO: need to use the structure I've put to make it all clear. EHRC says because one sex means both when some have certificates its difficult to interpret reasonab

AO: leness. Any women might reasonably object to men in changing rooms, she cannot be said to be thinking reasonably if she objects to men who have GRCs? That cannot be right, and it becomes an offence under the GRA to share info about certificates.

AO: residential accommodation rules for women. EHRC says interpretation of that provision gives rise to practical application. Women only accom becomes hard to maintain. 3 artificial categories: pg 416. Men in EA a natal male who doesn't ID as trans, natal female with GRC and

AO: natal male who ID's as trans without a GRC. Women are natal female no GRC, natal male who ID's as female with a cert, natal female who ID;s as trans but no GRC. These are categories schools/hospitals etc are meant to use?
Services for people needing care, where LS used impos

AO: ible in practice. EHRC agree it's difficult, but disagree with FWS that it makes it impossible in practice. Women only wards, neither SG or AI address this point. EHRC, SG and AI agree wards would have to be set up for female no ID or GRC, female who ID male no cert + male

AO: with a GRC.
There is no appearance test for a GRC, you cannot tell if a male with PC of GR has a cert.
J: does it matter?
AO: yes, that's why it's here.
J: but you can't see if someone is homosexual.
AO: Yes, and
J: Can't only be protected if evident

AO: perception matters, discrim on grounds of perception, will come to that.
J: EHRC say excluding male with GRC doesn't constitute sex discrim.
AO: Yes, they say they are the same sex. Point is as EHRC accept that is logical but it is perverse and absurd. Do I need to explain

AO: a man with a cert will be able to sue a ward for non-admission to a female only ward? How is a hospital administrator meant to distinguish between the males with and without a GRC? Only one of those can count under the S91. They cannot be asked if they have the cert.

AO: if you were to ask, you are acting in an official capacity in this case (hospital admin). Pg 3886-7 shows it's an offence
J: several numbers given don't align.
AO: section 22 GRA sub section 1 it is an offence if protected info is obtained in an official capacity sub 3, inc

AO: public/prof services - if they ask and are told, it is an offence unless the person agrees. If they don't agree that is a veto. No point in asking for birth/driving cert....
J: asks re numbering.
AO: we know you can change sex marker on those without a GRC. GRC not required

AO: EHRC say no diff btwn natal male with GRC in appearance, it is an offence to ask and share info, can't rely on birth cert/driving license, seems impossible for administrators carry out what EHRC suggest. It's unclear.
J: 22 4 J might apply if you need to see cert for purpose

J: of applying another section of the act?
AO: chilling effect of no knowing what you can do, should administrators have to check through acts? Problems arise because of the rabbit hole of terms. Can be simple if we use simple terms. Difficulties created by other side.

AO: Courts duty is to apply what legislation says, SG says an explanatory note allows what they suggest.
J: there are separate explanatory notes for Scot/England etc and so it woul dbe helpful to be addressed on those matters.
AO: Note from before EA was passed, was being discus

AO: I don't think explanatory notes are helpful here, but it's from Equality Bill 2009 Dec 2009.
All trying to find note.
AO: Parliament told SS services could be given, cervical cancer for eg, to women not needed by men, but are by women with GRC that SG say are men

AO: DV facilities too, separate wards in hospital. These notes don't apply to the EA because Parliament thinks it is using the normal meaning of men and women, in 2009. Separate changing in shops, massage services etc. What if a natal man says I want massage in your home

AO: because I have a certificate. Now I've told you you have a certificate, you will be committing an offence if you tell anyone. But if a woman went to a male masseuse she could just say sorry and walk away.
Is going to look at regulations over break, but stresses it's prior EA

AO: what is it to have PC of GR (gender reassignment). Section 7 of EA. pg 3983. GR, has PC of GR if has begun, intends to or has undergone the process of reassigning sex. Says they are using sex in the biological sex. Predicated on physiological and non-physiological attributes

AO: voice, facial hair, T, strength......
J: yoy are saying those are physiological?
AO: yes but also psychosocial and ..
J: is how you dress an attribute of sex?
AO: no I'd have thought that was gender as in Elon Cain.
How you dress is your choice.
J: you are saying sex and

gender weren't being used interchangeably?
AO: No you can only reassign sex if you know what sex you are in the first place.
J: GRA definitions in sec 9 does use them interchangeably
AO: yes it does, the long title uses gender, the putting in of sex was a later suggestion

AO: to allow for same sex marriages. The Bellinger case was about nullity of marriage if sexes were the same, it was about those with GRC's being able to enter into same sex marriages.
Why should 9.1 be given priority over 9.3?
They are predicated on a clear definition of sex

AO: including in the GRA. In 7.1 EA if you replace sex with certificated sex - he reads it that way - it undercuts the protections intended. The only process to change sex is obtaining a GRC.
J: arent you then looking at the start and end of the process?
AO: no you are looking at

AO: the bio and physio characteristics for the purposes of reassigning the sex. SG say it's legal sex, they would need to be consistent and use LS in all places inc the GRA. On their reading it is a nonsense, because changing biology (or other arrtibutes) is mentioned.

AO: if our reading is preferred, the act works and GR still works too.
J: natal woman with a GRC would only be able to claim sex discrim via perception only?
AO: no, both
J: but she couldn't claim on grounds she;s female
J: did I say man with a GRC, could that person seek

J: to claim direct discrim as a woman?
AO: could claim as man if GRC hasn't changed sex, if not acting 'as a man', could claim on basis of thinking they were a woman, could claim if people didn't think it but did treat as a woman.
(Me:....this is hard!!)

AO: group counselling for female sex assault victims can exclude (EqBill notes again) if women likely to self exclude if Male with GRC attended.
J: no diff between with or without GRC?
AO: no, no mention of GRC. And only being held for some women, those who do not have a GRC

AO: on SG reading you can still ex...
J: Does having a GRC, it doesn't prevent you being a transsexual person.
AO: no it doesn't
J: an protections apply
AO: yes. The note says in this case both can be excluded. If the SS service excludes any natal woman with a GRC, it wouldn't

AO: be a SS service. The price for allowing SS female sex assault group to go ahead lawfully the only people who can be excluded, are women with a GRC if men are to be excluded.
J: it would have to be justified.
AO: Yes.
J: does it have to bea blanket rule, or can it be case by

J: case basis. If using your language, someone comes looking like a man with a GRC, if the group wish to exclude do they have to exclude all men with GRC no matter what they look like?
AO: yes, that would be perception discrim. To have a rule you need to justify the rule. People

AO: are being asked to administer this under threat of breaking the law. The EHRC accept that. Ultimately women with a GRC are paying the price for including males with GRC in the group. If you include them in female gynae care wards, women with a GRC will be excluded

AO: SS services must exclude women with a GRC (EHRC) those women stand to lose these provisions as a result. It is natal women with a GRC who lose rights. Natal men with GRC gain rights, even if they don't need them, eg obs/gyn.
J: natal men + GRC be entitled to prostate screen?

AO: if they asked, but not NHS calling in for it. Para 69-84 of FWS written case. Insurmountable issues can arise for women with GRC when pregnant. It happens. Cases concerning natal woman - one with GRC under German law, wished to be reg as father. And natal man with GRC ferti

AO: lised in vitro a child and wanted to be reg as mother. German courts denied both. McConnell also came before our courts. It is an issue for SG approach. McConnell gave birth to a child and was recorded as mother.
Maternity provision EA applies only to women. Para 2 sch 7

AO: sex equality clause allows for special treatment in contracts dealing with maternity benefits for women. 4352, Sch 22 preserves lawfulness of protections of women in relation to maternity if enacted in previous laws. Natal woman with GRC would not be protected.

AO: SG and others say a natal woman with a GRC has the possibility of protection through GR discrimination. EG McConnell would have been protected as it would have been GR disc.
J: missed it.
J: why not direct GR discrimination?
AO: Because some with PC of GR do not have cert.

AO: SG reading, if PC is sex, in a case where B is a man (natal woman with GRC) no account is to be taken 13.b says so. If claiming on grounds of GR, would have to compare treatment as unfavourable with a man who is pregnant. There is no relevant comparator. It is not an illness.

J: it's just after 1, is it a convenient time?
AO: yes I'll continue.
J: we'll resume at 2.
+++++Session Ends+++++

@threadreaderapp please unroll