Thread by @tribunaltweets

Part 2 of morning session. LI continues for SG. Abbreviations at the beginning of Part 1 of morning session.
Before I look at the structure of the Act, looking at the rqmnts for a GRC. The nature of the rqmnts makes it clear that the GRA makes provision for a change in status

The rqmnts are onerous and profund. The rqmnts are at para 21-29. And ref to relevant provision of the GRA. Sec 11A application - made on the basis of living in the other gender as opposed to having changed gender abroad.

LI - Determination of applications. The 4 criteria that a GR panel must be satisfied: 1 - gender dyphoria 2- lived in desired gender 3 - intends to live in acqd gender until death and 4 provides evidence.
Requires 2 medical reports. From specialist in field. 2 statutory

r'qd.
J - if there is going to be treatment there must be details of it but there doesn't need to be treatment.
LI - that is my understanding
LI - now back to 2 statutory declarations required: has lived in aqd gender and will continue until death.
J - is the form specified?

LI - I do not know, we can look in to that.
That is all I am proposing to say on rqmnts for application.
J - are you going to say anything about 'living in the acqd gender, pronouns, documents'
LI - I would propose to come back to that
J - I was actually asking for your

position was on 'living in the acqd gender'
LI - we will come back to that after lunch
J2 - I wonder if the panel would issue guidance etc
LI - we will look into that and come back to it after lunch
LI - point on structure of GRA. It's on where Section 9 is, let's look at it.

LI conts
It shows that from the surrounding pages, application for a GRC, under a heading of consequences of a GRC, and the legal consequences.
The point I want to make is that every provision of the GRA can be seen to relying on Sec 9. It is the linchpin of the GRA. Every prov

relies on it. 'a person's acquired gender becomes FAP the person's gender'. The issuing of a full GRC effects a change in their legal sex, such that becomes their sex FAP.
J - what is your first point?
LI - interchangeability of sex and gender, it's in response to AO

contention that sex and gender are not used interchangeability.
The Inner House recognised that sex and gender are interchangeable. RC made some points about Goodwin. And they were using the terms sex and gender interchangeably.

LI conts
Examples of use of sex and gender interchangeable use.
<<<feed dropped briefly>>>
Biological determinants in Goodwin: departure from a biological determination of sex for the convention.
The GRA gives sex the wider meaning than biological determination.

Point 2 - the change that is affected by the GRC is a change in legal status. Both Bellingham and Goodwin note that it is a change in legal status.
Point 3 - the change is unqualified. I point to the 'for all legal purposes'.
Point 4 - it states what has occurred - a change

that has occurred, not a change that is seen to have occurred.
J1 - it's not a deeming provision
LI - I will come on to that later
J2 - you're saying its legal fact, not legal fiction.
LI - 2 intervenors, SM and AI refer to Sec 9 as a deeming provision. AI refer to it as a

strong statement of what has occurred, rather than a statement of what is said to have occurred.
Therefore we do not see Sec 9 as a deeming provision. This is consistent with what the EHRC say in their submission.
We say that it may not make much practical difference

if the Court considers this a deeming provision or not.
It is guidance. We say it is an orthodox statutory approach, therefore it doesn't matter.
J - does it matter that it affects another statute?
LI - we say it does affect another statute.

J - But how can it impact another statute?
LI - I'm not ready to discuss this but I can come back to you after lunch.
LI - calling the important issuance of a GRC as a legal fiction is not appropriate.
LI - Sec 9.2 does not apply to things that apply before that GRC is issued

But applies to things that occur afterward. We say the the strength of FAP in 9.1 is reinforced or demonstrated by 9.2. It operates from the point of issue of the GRC, required to read in the light of the legal presumption, given affect to legal recognition that the person's

gender has been changed. We say 9.2 gives further far reaching effect to the GRA.
J - you will be saying that section 9.2 determines the application of the deeming provision in 9.1?
LI - yes, my Lord.
LI - I have one final section, that provides that subsection applies

to any subsequent legal acts. We say that the nature of the qualification in 9.3 is important. It does not affect the strength of the presumption when it applies FAP. Sec 9.3 does not dilute the presumption of 9.1
J - are you aware of any other enactment where this applies?

LI - we say it's primarily the EA.
J2 - but can you give us examples of where this dis-enactment might apply?
LI - I cannot at this moment but I will come back to you.
LI - going back to the qualification of 9.3, it is to permit exceptions to that purposes, it must be narrowly

construed. If it is not narrowly construed, it undermines 9.1, the core principle of the GRA, undermines the convention rights. We need to look at intentions.
J - intentions?
LI - we say that the intention must be explicit
J - expressed intention?
LI - yes
J - what does the

adoption act say?
LI - Let me check. The adoption provisions are discussed in our case, case references provided. Ref is made to generally applicable interpretation provision, and subject to the provisions of this chapter. It's not an exact 9.3 replica.

LI - but my Lady's question was is there a similar provision in the adoption act? There is not an exact provision.
J - yes, that was my question.
LI - Referring to another case, the quote provided, and the essential point being made is that Parliament can legislate against

human rights but that must be explicit. Any general expression must confront the issue.
We say that Parliament has legislated about the fundamental human right of identity. The RO case referred to a case that had to do with payment of a fee for registration.

In my submission it is directly on point, the decision which was not notified, it involves a fundamental right, it is in effect a binding decision as to status. It was a principle of fairness, but the case concerned asylum but it went to the principle of legality.

The case applies because Parliament has legislated a fundamental human right in sec 9.1. It has also legislated in 9.3 as to how to depart from the act. If Parliament wishes to depart from the Act - 'it must squarely confront what it is doing and accept the political cost...

because there is too great a risk that the unqualified meaning may be lost'
We say that because of 9.3 Parliament has not legislated against 9.1 because it did not make that clear.
Further intention is important. We say that 9.3 applies to later legislation and we agree with

the EHRC. We make the point from the reading of the GRA and the nature of sec 9. The limitation of it only applying to later legislation, sec 9.1 applies to the current legislation. It follows logically that 9.3 has no application to legislation that existed or

preceded the GRA.
J - but what about 9.2
LI - it applies to the situation at the time.
J - if there is an act from 2004 that use the words 'women and men', you say that this applies and must include GRC holders in that category
LI - it covers all existing and subsequent

legislation
J - question on interaction of 9.2 and 9.3
LI - my understanding: 9.1 - sets out the presumption. 9.2 applies to all existing legislation 9.3 - says that any future legislation must deal explicitly with the question. That may not have assisted my Lady.

J (says nothing)
LI - in respect of existing legislation at the time of the GRA, Parliament has made specific provision in the GRA for how it applies. There cannot be the specific provisions and then a general requirement for dis-application.
If the temporal limitation does

not apply, then we say that 9.3 must remain narrow. It permits the departure from core principle only when 'squarely confronting' the issue.
LI - examples of how 9.3 might be applied for the 9.1 presumption to be dis-applied. I'm conscious of the time so having intended to

give 3 examples, I will give 1 plus references. 12, 15 and 20 (references). Section 12 addresses that mother and father are not changed by the GRA. Sec 15 has to do with law of inheritance.
J - what about Sec 20?
LI - it relates to a body of law, criminal law. It relates to

an entire body of law. A person with a GRC can still be found to have committed sexual offences.
I have concluded, now over to RC.
RC - turning to the body of law that is the EA.
Our first submission is that Parliament had the GRA in mind when drafting the EA. We list 4

factors to demonstrate that.
1. Schedule 6 repealed, the sex discrimination act
2. Section 19 of GRA; was repealed and that is in broad terms a sporting provision, developing that point having repealed that the EA introduced similar not identical provision.

Diverting slightly to pick up the sporting example, giving rise to difficulties in accepting 9.1. 2 points to make: it is said by SM that 1.95 applies only to competitive sport by speaking to disallowing competitors. This seems narrow. But sec 1.95 clearly enables

discrimination on GRC reasons. Section 195 does not dis-apply section 9.1. The person with the acqd gender continues to belong to that sex, but may not participate with others of their gender because they have protected characteristic of gender reassignment.

3. There are no other areas in which the GRA is repealed by the EA
4. The EA provisions are in part 6, we say that in those provisions we see the express dis-application of the sec 29 in the provision of services. And an express acknowledgment of the presumption in 9.1

J - you want us to be looking at para 25.
RC - Has to do with marriage, there is a dis-application of the sec 29 provision. There is an express mention of the presumption in Sec 9.
J - but this has nothing to do with GRCs
RC - simply pointed out the express mention of the

9.1 presumption.
<<<4 judges discussing the provisions>>>>
J - but here what the provision is focusing on is having a GRC
J2 - but you couldn't marry if you did not have the GRC. Sec 29 This does not have anything to do with GRC, the characteristic is wider.
RC - moving on

to discuss A's contention that sex means natal sex, not certificated sex. It fails in a number ways.
We submit that the GRA is not limited to the vertical relationship of the person to the state but has horizontal affects on society.
The second contention is that the GRA

runs wholly contrary to the EA. We say that is not the case. The EA ensures that those who belong to a sex via a GRC are entitled to the protections afforded to that sex.
Y'day points made by SM, disadvantage to individual women and remedy of historical wrongs

SM - said a group of women that includes a GRC holder is strangely constituted. We say that any group of women by their criteria is strangely constituted. It could include natal women, women with a GRC, women who intend to transition.
Which did Parliament intend to be a group

of women?
J - I've looked at those specific provisions of the 1999 act, would it be possible to have an integrated version of the 1999 sex discrimination act (SDA)?
LI - I have 3 short points on the SDA. Changes were made that did no more than req'd by the P&S case.

P&S was followed by Goodwin & Bellinger and the subsequent GRA.
There was no need to expand the definition in the SDA, if sec 9.1 applies. There is no need to expand the protections of gender reassignment. The appellant uses the word 'identifies'. This is an error.

Because it is not identification because they are become a member of the sex class covered by the GRC. They can rely on the protections afforded to that class and can claim discrimination.
J - but they don't need the GRC to claim sex discrimination do they?

LI - but we say that they don't need the perception approach to sex discrimination.
J2/3 - but they don't need to disclose to use perception discrimination.
LI - but they get a birth certificate in the acqd gender. Women do not need to prove they are women.

LI - if someone has a GRC the easier route to obtaining protection against discrimination is to simply assert their acqd gender'.
J - are you going to deal with the counter argument that they might be excluded having a GRC
LI - if one is relying on perception, one might be

relying on stereotypes.
J - aren't stereotypes inherent in the GRC?
LI - no, one simply asserts that one is a woman
J - you agree that perception discrimination is useful than why do they need a certificate?

J2 - if a natal man has GRC as a woman who do not present as women then they may not be discriminated against if the employer is discriminating against women, does that affect the women being able to identify a comparator, then can they bring a discrimination claim?

LI - can I look at that over lunch? I think I need a flowchart to work it out.
J - there have been a number of high profile transwomen who have been successful as men....
LI - having problems with my papers.
J - then shall we adjourn now for lunch you can put your

papers in order?
LI - yes, I have a fairly large chapter of my submissions to come next.
J - let's rise and try to come back at five minutes to 2.
Court rises.
End of morning session, part 2.

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