Thread by @tribunaltweets

RC Addressing potential difficulties. First sexual orientation the court notes we address this. s12 regards orientation to sexes. The attraction is to a person who holds attraction to SO of a person. Using s9 defintion this logically applies to EA and changes the class of person

RC y're attracted to. But doesnt affect ability of that person to evoke protection
J But it changes sexual attraction. What about assocs?
RC Important that SO of class of person doesnt change in consequnece of indiv person w GR and/or sex. A woman at birth orientated to woman

RC at birth wouldnt be less attracted to someone who becomes a woman via a GRC. If attracted to women she remains that way, but may not be attracted to all in that category, eg by political view or looks
J I don't understand yr point

RC I accept it changes
J why are we looking at class of person?
RC It may affect other lesbians but I say it doesnt. They remain lesbians
J Lesbians arent attracted to every woman
RC Exactly
J Y're not addressing SL points
RC Part 7 of EA, not discrim against persons in

RC assocs. Exceptions in s6 [reads] assuming that approp selection processes. It cant exclude a woman w a GRC orientated to other women. Fundamentally, is diff to see how that conclusion re natal sex only. If an assoc wants to advance a protected belief, eg immutability of sex

J It would have to be lesbians w GC beliefs
RC Yes. If the assoc advanced a philosoph belief they could advance
J this wld have a chilling effect wldnt it? Wld have to include ppl w GRCs and self ID as you cant ask for a GRC?
RC No you cant. Risks stereotyping
J Can u answer

J re chilling effect?
RC I dont think it does. They cld exclude on philosophical basis
J Are they a charity?
RC I don't know
J Someone cld ask them and whether wld affect charitable status
J You say no chilling effect?
RC No. Only women w GRC can say they're lesbians

RC Is an issue re FoE and assembly rather than related to the EA. Not matters for this case and s9.1
J We have to give a workable solution to the EA in practice. A TW attracted to women is to be treated as a lesbian and cant be excluded unless they expouse polit doctrine.

J But otherwise trated as a hetero man. Quite a difference. And cant ask for a GRC
RC They cld ask for a birth certif
J and they may look like a man or a woman
RC But without a GRC they're not a lesbian. On SSS, I reference para 28 of sched 3.

RC Is broadly drafted.
J Medical services included?
RC Yes. Not allowed to deprive services
J Say Mr M went to an IVF clinic and they say no, you're a man, cld he bring a discrim claim?
RC As he's a man and declares he's a man it wld be difficult under breach of s29.

RC No discrim under sex or to GR. You live under declared sex
J what about having a baby?
RC I'll return here. Examples of rape counsellor or s9 of statute of victims and witnesses act, and entitlement to be examined by a partic sex. We address on p233

RC Think I've covered PSED of SM submission. Finally, preg and maternity provisions on pages x, the impact of these provisions is the extent to which they inform stat construction y're asked to look at. The complaint operates to exclude a person who'd declared to live in that

RC gender until death, but becomes pregant and gives birth. In view of stat declaration, doesnt have a bearing on the courts construction and applic of the EA as a whole. They dont need to be taken into account but u may consider they do, so suggest possible solutions

RC Legal recog of sex, anyone who then becomes pregnant needs addressing by Parliament rather than courts. A matter of deep political water. 2nd solution, is provisions come into being as a matter of fact regardless of a GRC. Woman isnt the essential element of s17 protections

RC - it's preg and breastfeeding.
J This may not work though
RC I accept that
J What about illnesses related to sex?
RC I understand there's guidance from the NHS re this I can provide. Eg cervical screening, dr arranges screening as a matter of fact under s29 provision of

RC service as a matter of biology
J Some risks are related to sex
RC Yes, indeed. But a dr wouldnt refuse services
J Can I take u to an example: [reads subsection 2 giving rise to risks specifically pertaining to women] If TW are women, then preg aren't risks specifically

J affecting women. It becomes v difficult.
RC Let me look at [pause]
J Eg cervical cancer doesnt include TW in risks
RC All I can say is, one then looks to. one isnt targetting women as such but looks at targetting women
J But lots of case law looks specifically at women.

J Pregancy is protected for women to not compare to an ill man
RC I cant advance the argument any further. Our position is these potential consequnces shldnt prevent proper applic of s9. AO didnt make much of his other statutes, and repeat the others dont inform applic of s9

RC to the EA. We were granted under first ruling, and not knowing if applied to this. And whether previous applicants were written off
J Are u asking for quashing of guidance?
RC S9 women.
J Unless being asked to remedy.
RC I was asked to raise it

JC Thank you for allowing us to take part. Been enthusiastically discussed. We agree with SG that terms male, F, man and women include the sex recorded on a GRC. For all legal purposes is what Parl intended for the EA, and included in guidance for SSS.

JC This creates problems w applic of the EA and impair the functioning of the act, esp impacts on women. But we draw different conclusions from the others. It doesnt have to be resticted to S and highlight matters not thought thru when EA and GRA passed and dont reflect changes

JC in society, or both. Or parliament must make changes. We agree that issues of interpretation must be made without considering the ECHR, as differences in interpretations and must avoid s3 overiding of the act. Convention rights might be affected as per April 2023 letter

JC Signif of legisaltion history and 1975 sex discrim and breaches of HR, certified sex definition and searches for trans ppl in Constable case.
Firstly, little attention given by A or R. The commision intended definition of woman to be subject to 9.1

JC Discusses section 5
J I'd like u to address s7 and male physiology for occupation
JC The provisions of SD act ahead of EA, some provisions are in the bundle. Prior to the GRA, terms referred to a post op transexual who was FAP indistinguishable from someone of that gender

JC On p1634, there wasnt certif sex, this was LS
J Just before GRA in force?
JC Yes, compelled by P v S and equal treatment. S9.1 of GRA changed this so only meant a person w a GRA. So now ask if have a GRC. The notes of debates at the time

JC indicate the govt meant to change meaning of the SD act to include s9s. S9.1 means SDA should be read without qualification of s9.3. We submit that as stated in para 29 of explan notes, the inner house held and no parties have disputed, s9.3 relates to proviosin

JC made. Look at paras 27-9, is consistent w operation of 29.3. It's sunordinant, and explains s9.3 or else there'd be an undermining of FAP. Unless otherwise covered by prev legisaltion. If didnt apply to future legisaltion it makes it weaker than other legislation. S9.2 says

JC it shld actually be stronger. Re marriage, the instrument and the matrimonial causes act. If 9.3 could bite on the SDA, it remains the position that disapplying s9.1 cld have been in the GRA but it wasnt. BC said this was all consistent yday and 9.1 applies to SDA.

JC So it made a signif difference to the SDA when GRC passed. The A must show the EA intended to change the effect of the SDA in this important effect, and reversed what was brought in by European law. But no such change intended. we cite in 27.3 the Iadely case.

JC Re whether the GRA had impacted the EA. Answer, no it hadn't cos no such change was suggested. Cld have made it clearer that it cld have affected SDA but no such provision was made. In fact, the key provisions are identical to SDA except s212 of EA & woman means and includes

JC Showing women includes girls. The SDA cld refer to someone else in 1979 says AO, but assumes what needs to be established and that sex has a bio meaning. Is s9.1 allowing this or not. BC was more subtle about rebalancing rights of those w PCs

JC Were some other changes and details but nothing to say a signif change in discrim law was made. AO said to identify manadating of s9.1 in EA. BC didnt say which was the best interpretation. Neither approaches are correct and dont give weight to s9.1.

JC We say there must be specific disapplic of 9.1 in principle of illegality. Must give due weight to s9.3 too that looks backwards and forwards too. Nor does BC saying 9.3 definition of terms cannot be an approp method for Js to weigh up the pros and cons of each view.

JC We agree w the utility of his claims, re discrimination by perception and assoc, but diff to say that all wld be fully protected where u dont have full facts upon which to rule. Claim for discrim in acquired sex, or inbetween zone referred to in Goodwin.

JC Certificated sex may have difficulty in equal pay claims. No direct equivalence to perception or association, regarding pay. Ask court to note, other provisions re s9.1 w/out ref to s9.3 and the difficult areas that arise w certified sex. Look at SDA.

JC Refer to p16 and s29, equiv ro s29 in the EA re provision exceptions of sexed services. SSS provision exceptions equivalents, raise the same diff issues as applies to trans ppl which we agree happens. Spaces restricted to men..[reads re s2 of SDA]

JC S46 re communal accommodation is v similar in the EA. S9.1 does apply notwithstanding the diff this may create. Human Right issues - reject the invitation of the interveners and the EA having to comply w convention rights
J In s29, ss1B applies to refusing her on same terms

J as a male. SS4 describes how to deal with this. On your saying re s9, ref to males in 29.1B does include trans men w certificates? Male has to include males w certif?
JC Yes
J Then you see the issue w ss4?
JC Maybe we look at a broader class...

J If u dont have an immed answer we all need to look at this
JC It's only occup training and not the braider class of ppl. Important HR is whether any gaps in EA protection with full remedies under the EA. If sex restricted to S, may be other ways to protect themselves - indir

JC and by perception, but isnt enough info to ensure no gaps
J Have u found gaps or are there suffic protections for women w a GRC?
JC We think there's areas where might be interference. Concerns re equal pay act and not having complete protection. We havent looked for all gap

J Is an irony about..
J Convention rights: do you not agree w s9.1 SG finding then?
JC In my submission sI cover this. 9.1 was for fundamental rights eg marriage, but not everything is a 9.1 requirement
J But not raising human rights issues might affect ?

JC Is a matter of interpretation re fundamental rights. Shld give a high level of protection. If court upheld re breaches, wld go beyond Europ case law. In Goodwin legal recog of gender and no public interest claims were put forward.
J But this was to support ppl and not being

J willing to support others. Has Strassborg been extended for ppl who havent had surgery?
JC Yes
J Did that presuppose the person was indistinguishable from a woman?
JC No. Not that criteria. The French system isnt equivalent to ours. Cases like Goodwin being concerned

JC re surgery but hat no longer applies. There isnt Strassbourg case law to support breaches of convention rights where rights need to be balanced. Two factors led to issues currently that dont protect womens rights enough. Didnt consider SDA definitions of words via s9.1.

JC Consequences werent foreseen - was no pre-legis consideration given to this nor preganct man nor SSS. It just adapted for the SDA devised for men.
J Did they distinguish between M and W with certificates?
JC They didnt look at the exception of pregnancy and so forth.

JC Society has evolved since 2004 and 2010. Responses to litigation was brought in response to Goodwin etc. Today, SM show much larger nos of trans ppl dont have a GRC and dont want to get one. So are 3 categories of person in each sex.

JC Increasing concerns re TW, with or without certificates, as per April 2023 letter that support change in legisaltion. We dont endorse all criticisms of the other side but think it's beneficial to change the act as per our submissions

JC Failure to protect TM who are pregnant so this should be extended to protect them. There are some pregnant men who cld use direct discrim of GR but AO disagrees. Preventing a man comparing himself to a pregnant woman but this is only grounds of sex discrim.

J What is the comparator
JC Key issue is preganancy so must be someone who is pregnant
J So a preganant woman who's not a transman
JC Is a reduced imperitive to distort meaning of woman. Freedom of assoc for women: our analysis was criticised

JC Is common ground the commission was correct. A hetero TW becomes a SS attracted woman, which impacts FOA for lesbians. For women more generally, it's not lawful for a women only assoc to exclude a member on grounds they're a TW with a GRC

JC Wider impact and chilling effect on women's assoc, we agree. On SSS, can I respond to Lady Rose is no eg of a person being refused NHS treatment due to having a GRC. And SSS dont encourage this to happen. A refusal wld be GR discrimination.

J No is a refusal to give a natal man a smear.
JC If u refuse a service they need, we wld say is GR discrimination, indirectly or directly.
JC Rest on paras 39-42 where we distinguish on SSS and TW with or without a GRC as they have to be distinguished.

JC The chilling effect is impaortant. research by SM is relevant here. Looking at A v Chief Constable and criticisms of the EAT. Dont want to endorse about the reasonableness of the claims. It hasn't aged well
J We're talking about boards. You look at partic candidates here

J If you're looking at women who have had lived experience of coming up the ladder as a woman, so could look for a natal woman or someone who'd got a GRC at an early age. You could say u dont have the experience we're looking for?
JC I dont doubt that's not unlawful.

JC We're looking at what counts as M and F representation. The +ve action rules in the EA are affected by a certificate
J What's the purpose of having women on boards? Diff of getting through a corporate structures, so why have a man who's transitioned late in life?

J What benefit wld they bring?
JC We said in our April letter this was difficult and agree w sentiments behind your question.
J I need to close this discussion

AO I disagree w SM in 3 points. Gender change is the same as sex change is wrong. The Europ Communities act was

AO only on unfair dismissal. Cannot discrim on GR id the sex is a requirement for a job, Sex cldnt change in 1999 ahead of the GRA so was to maintain bio sex. Cldnt have gone any further in P v S. I also disagree w ? 1999 regs in 4668, show based upon sex being bio sex. The GR

AO definition [reads] is using sex as bio sex, and physiology is also used in SDA. Others relate to social aspects of sex - tendency to violence etc. In terms of r'ship between GRA and EA, the GRA has vertical effect related to the state but not an obligation in private law.

AO It doesnt force that changed sex, whereas the EA is horizontal. Parliament mangled the mess making the EA ineffective. the Court shld clear up the mess to enact what the law was meant to do. To live as a woman it's about the legislation and nothing to do w appearance and

AO performative. U avoid appearance or else u get to what a woman shld look, sound and behave like.
J But GD means you want to change. It presupposes a disconnect, but y're saying GD doesnt exist.
AO Now saying GD shouldnt be used as is discriminatory and want to be removed.

AO So now gets to stereoytpic presumptions of how ppl behave. Just tell us what's in yr documents. No intention of surgery as wanted a functioning penis whilst reclassified as a woman. Adoption changes legal things but doesnt impact outside familial r'ships, unlike a GRC which

AO impact womens rights. s9.2 relates to 9.1 legal fiction without a s9.3 exception meaning that such pre 1994 enactments, only applies to pregnant women and not preganant man. Stupid decisions by SG is another absurd consequence re abortion. Limited to necessary implication,

AO and forensic victims legislation which postdates the GRA that was lobbied for. It originally said gender and not sex, to ensure talking about bio sex. But s9.3 wld apply here and wld have perverse outcome of turning all this work backwards.

AO S v LS means woman is strangely constitued. But women undergo surgery for illnesses and doesnt turn them into non-women, and these surgeries of trans ppl doesnt turn them into men or a different type of women. Goodwin only deals w post op transexual, and GRA goes further and

AO no need for ops. there's no decision to this effect and no need under HR law as SG suggest. Re surgery resulting in sterilisation, French +ve law made surgery or medication that resulted sterility likely. It only said u cldnt require sterility, and non-sterile deserved to be

AO recognised. Treat a man as if a woman, but RC is a breach of HR for IF a woman rather than AS a woman. WHy do the feelings of these men trump the feelings of natal women? Women have rights to protection to their identity and privacy. GR are not a trump card against women.

AO women's rights are ignored. UK law seeks to protect women's rights, to substantive equality as a constit right. It's not just those w certificates who ahve fundamental rights. They need privacy and protection. Womens rights are human rights

AO PArliamentary must square up to womens rights. There's too great a risk womens rights were forgotten. The basic rights of women as women. One wld hope these fundamental principles were accepted and that women's rights are human rights.

J Thank you everyone and we will get a result to you as quickly as we can.

Hearing ends

[Apologies all, but that was incredibly fast at the end and it was impossible to capture everything AO was saying]

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