Thread by @peter_daly

The assertion is being made that the Supreme Court judgment in FWS places the UK in breach of its ECHR obligations, as laid out in the case of Goodwin v UK. A court case is apparently being prepared on this basis.

I think this may be seriously misguided.
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The assertions regarding Goodwin are varied, but are broadly that Goodwin is authority for the proposition that, in law, Trans Women Are Women / Trans Men are Men, that they must be treated as such at all times.

Goodwin is a case from 2002, so 23 years old and referring to events that happened in the 1990s and before. It resulted in the UK passing the Gender Recognition Act 2004. But that doesn’t mean that the GRA replicated the Goodwin requirements. What did Goodwin actually require?

Here is the judgment in Goodwin. It’s clear and readable.
{%22itemid%22:[%22001-60596%22]}hudoc.echr.coe.int/eng#

The background to the case is set out at the start. It’s a relatively short section, describing what can only be described as a terrible set of experiences for the Applicant.

The Applicant is described in the first substantive sentence of the judgment as “a post-operative male to female transexual”. The importance of being specifically “post-operative” is repeated throughout (the following are only examples), including by the Applicant

And the Court:

The relevance of the Applicant being post-operative to the Court’s decision and reasoning is clear:

The decision was that the UK was required to grant “legal recognition of [the Applicant’s] gender reassignment”. This was to correct the detriments experienced as a consequence of there being no route to legal recognition that the Applicant was a “post operative transexual”.

Not a transwoman, not trans, not experiencing gender dysphoria: a “post operative transsexual”. This is not the activist interpretation of Goodwin, which seeks access to female spaces for men who identify as women, regardless of physiology.

The specific detriments that the Court recognised the Applicant to have suffered were:
1. Ineligibility to claim a pension at the female pensionable age of 60
2. Ineligibility to claim sex discrimination, because she was legally male
...

3. Dismissal or non-hiring for work
4. Harassment at work
5. Having to reveal her sex to the DSS in order to attend appointments
6. Paying NI contribs for longer
7. Inability to marry (it would be a same sex marriage)
8. Inability to change birth certificate

None of these detriments persist today (or, if they do, are unlawful, which is all the state can do to prevent them). FWS does not change this. I don’t therefore see how FWS places the UK in breach of its Convention obligations, or of the decision in Goodwin.

The Gender Recognition Act has not been repealed by FWS. The state continues to grant legal recognition to a person’s gender reassignment. That does not require a trans person to be treated by everyone in society as though they were the opposite sex, which is the activist demand.

None of this is to say that recognition of change of gender remains dependent on being a “post operative transsexual”. Subsequent ECtHR cases have made it clear that surgery cannot be a requisite for state registration of gender change.

But it is to say that (a) Goodwin was decided in its own context, and (b) registering a change of gender does not mean change of sex, which is the Trans Women Are Women activist demand.

And if you litigate a fresh Goodwin-type case in 2025 (or, if you start in 2025, more likely at least 2028, by the time you get to Strasbourg), there is no good reason to think you will get a similar result than the Court gave in 2002.

The historical context of Goodwin is important. Much has changed in the 23 years since it was decided, and which would fall to be decided again in the context of current understanding.

The Court dealt with “medical and scientific considerations” here. Things have since moved on substantially. A new case dealing with the UK context would need to consider the NHS’s current approach and awareness of these issues, particularly post Cass.

Goodwin was making a decision of relevance to only 2k-5k people. A re-run Goodwin would be relevant to all trans people. The number is unknown, but is far higher. The ONS says that there are (a round and symmetrical 🤨) 48k trans men and 48k trans women.

And Stonewall were saying until recently that there were 600k trans people in the UK - though they have apparently abandoned that number now, possibly because of coverage like this.

These numbers matter because the Court has to undertake a balancing exercise between competing rights (trans women vs women). The factors to balance between x00,000 trans people versus tens of millions of women are very different than only 2k-5k trans people, as was in Goodwin.

Not that there was any consideration of the counterveiling rights of women in Goodwin anyway - this was not part of the Court's reasoning in 2002. The Court identified "no significant factors" to consider. That would not be the case today.

The balance of rights (A.8, but also As. 9, 10, 11 and 14) in a modern Goodwin *will* include the rights of women, because those rights are central to the FWS decision, which is now the UK apex Court decision. Eg the rights of women and girls like these if Trans Women Are Women:

Another activist assertion is an Article 3 (torture, inhuman or degrading treatment) breach of trans rights. Again, you’re going to have to think about women’s rights too. See this article by @claire_ob1 about prisons:
scottishlegal.com/articles/clair…

@claire_ob1 The ECtHR recognises that states are not homogenous and can apply convention rights to differing extents from one another in light of social and historical contexts.This is called the margin of appreciation. Public opinion is material.

So if you bring a new Goodwin case, it is at least possible - if not likely - that you will cement the FWS/Equality Act approach of biological sex as being a *Convention* requirement, applicable across all Convention states.

In sum, I don’t think the UK is in breach of Goodwin, but if activists want to litigate the point, they should be careful what they wish for.

END