Thread by @tribunaltweets

We hope to report on oral arguments and submissions today in Peggie vs NHS Fife and Dr B Upton.

Our previous coverage of the Tribunal with links to press, etc can be found on our Substack here:
open.substack.com/pub/tribunaltw…

A reminder on the limitations of our reporting. Oral argument can be the most challenging to report as there will be copious documents, cases etc referred to that we have not accessed. We have not seen the written submissions of the Claimant or Respondents.

The Judge's admonition is less relevant now but we repeat for the sake of consistency and clarity.

Abbreviations

Thank you for following and supporting our work.
We hope to be back at 10 am.

Certain parties have been granted leave to intervene and have prepared written submissions. Those who have published their submissions include:
@NotAllGays drive.google.com/file/d/1FDwOMw…

@NotAllGays And @ForWomenScot
drive.google.com/file/d/1QxPIfw…

@NotAllGays @ForWomenScot We understand that @TransLucent_Org has also been granted to leave to intervene. We have been unable to find a published copy of their submissions at this time. We invite them to publish and we will include.

@NotAllGays @ForWomenScot @TransLucent_Org Additional abbreviations
NAG - Not All Gays
TL - TransLucent

@NotAllGays @ForWomenScot @TransLucent_Org We have been admitted to the hearing room.

@NotAllGays @ForWomenScot @TransLucent_Org The Judge and Panel have entered.

@NotAllGays @ForWomenScot @TransLucent_Org J - <nods to NC>
NC - on prlmy matter, on the question of open justice, we have had various requests for our submissions, our view is that these are the Cs docs and she is entitled to do with them as she wishes, it is her Art 10 rights, freedom of self expression. We are minded

@NotAllGays @ForWomenScot @TransLucent_Org to release, there is no order to prohibit, there is no reasonable basis for such an order to be made. Our written subs will be released to the press, Dr M Foran, and Tribunal Tweets.
J - would you like this to be dealt with now or afterward.
NC - yes please

@NotAllGays @ForWomenScot @TransLucent_Org JR - our position is the spirit of entente, there is a middle ground, the C's redact the deadnaming of DU, it is gratuitous and unnecessary, DU has been sued not in deadname, it triggers dysphoria, the GRA attaches criminal liability in cases where someone has been outed

@NotAllGays @ForWomenScot @TransLucent_Org These are not those circumstances, no GRC, as Parliament has rec'd as criminal offence, it is serious. Also the ETBB -
J - Scotland?
JR - yes
J - do you have a copy?
JR - can supply, now quoting, 'name or pronouns can be very important to the transperson, sign of disrespect if

@NotAllGays @ForWomenScot @TransLucent_Org transperson not ref'd to by them. No one should be outed, everyone should be treated with courtesy and dignity.
The gratuitous dropping of the deadname in the submissions is harmful to DU, contrary to the ETBB, and contrary to Supreme Court, in relation to EAT Forstater

@NotAllGays @ForWomenScot @TransLucent_Org Finally, DU's deadname is not relevant in this case. Unless I can assist.
NC - as far as I can tell, that's not a request to the ET but to the C, and the answer is no.
JR - in which case, I will make an application
J - under rule 49,
JR - yes
J - there was email corro on

@NotAllGays @ForWomenScot @TransLucent_Org this,
NC - yes
J - has to do with public register,
NC - our reading is that the ET can treat that as 'known'
J - how do we know it, shall we look at the public register
NC - I'm asking you to accept it from our submission, the Rs have not said it isn't true

@NotAllGays @ForWomenScot @TransLucent_Org J - the old fashioned point of view is that submissions should address the evidence
NC - Yes, our submissions cannot be edited line by line, our position is that this is true, we include it in our submissions.
J - on privacy law, what do you say

@NotAllGays @ForWomenScot @TransLucent_Org NC - it's futile, first and foremost, DU's former name has already been reported, so the information is out there. It is counterproductive. Counsel is acting as if this info isn't up there. It's drawing attention to DU's former name. It's futile. The ET should make futile

@NotAllGays @ForWomenScot @TransLucent_Org orders. The name is out there. JR refers to Sec 22 of GRA, which of course has no application whatsoever here. It may be that if someone has a GRC, then he is entitled to some quite powerful privacy protections for his former name. Those protections were drafted for someone

@NotAllGays @ForWomenScot @TransLucent_Org who is succeeding in passing as the opposite sex, those very rare circumstances. If they've done that and they have a GRC, they have some powerful privacy protections. Does not apply here. DU as a trans identifying man has been made clear by these proceedings.

@NotAllGays @ForWomenScot @TransLucent_Org J - thats not what my colleague said in January
NC - the ET has had the ability to observe DU and reach its conclusions. Witnesses said they identified him easily as a man.
JR - briefly, the ETBB and GRA are not futile. And the evidence of witnesses has been that they did not

@NotAllGays @ForWomenScot @TransLucent_Org identify DU as a man, rather the opposite.
J - we will rise to discuss, please stay where you are.
Court rises.

@NotAllGays @ForWomenScot @TransLucent_Org J - we have a unanimous decision to grant a rule 49 order to redact the former name of DU. Arising from DU's article 8 rights. Balancing different rights we grant an order to the 2nd respondents former name, subject to redaction of that name, there is no order made.

@NotAllGays @ForWomenScot @TransLucent_Org NC - just taking instructions, we should be able to make those redactions within a few minutes. Just the Rs first name? No, there are middle names.
J - yes, I will do a draft of the order to ensure that we get it correct. Now, we have 3 hours each, it's 10:30, it is only fair

@NotAllGays @ForWomenScot @TransLucent_Org that either side has time to take instructions or think about our questions. I'm proposing that you can respond to our questions in further written submissions within 2 weeks. We keep an eye on the timing, and the stenographers will have a break every hour.

@NotAllGays @ForWomenScot @TransLucent_Org NC - in broad order, will start with remarks on broad authorities relied on by the Cs, I will also provide a copy of my speaking note, I will comment on the ET's approach to matters of human rights, the credibility of various witnesses, (missed).

@NotAllGays @ForWomenScot @TransLucent_Org Starting with Goodwin - in para 77 of Rs long document.
They rely on para relying on conflict between law and reality. The prob with this argument, the Rs urge the ET to find that under Art 8, DU has the right to access CRs, toilets, single sex facilities

@NotAllGays @ForWomenScot @TransLucent_Org This cannot be right. If so, the GRA did not go far enough, it has a number of built in limitations and safeguards. Did not implement ECHR did not go far enough. And the judgment in FWS Supreme Court was wrong. It says that a GRC does not make a man a woman for the EA.

@NotAllGays @ForWomenScot @TransLucent_Org The protected chara of gender reassignement is not affected, they are fully protected by the EA. But a GRC has no bearing on male vs female in the EA. Given that decision, the ET has no choice but to find there are limitations on how a TiM can live like a woman.

It must be lawful for him to be excluded from single sex spaces.
J - asking clarifying questions on EA. How does Sched 3 have relevance in this case.
NC - he can't be entitled to access women only spaces provided by public spaces, where there are single sex spaces. DU and any

other man like him has no right to access those spaces. He must be excluded from them because they are only lawful by Sched 3, if Sched 3 exceptions are to be operated, the threshold conditions must be met. It gives permission to create ss spaces. If some men are admitted they are

@NotAllGays @ForWomenScot @TransLucent_Org no longer ss spaces.
SSS - single sex spaces.
NC - it is not possible for a man who asserts a female identity to live fully as a woman, he can't have that right because those female only spaces are only lawful by Sched 3, if a man is in them they are not SSS.

@NotAllGays @ForWomenScot @TransLucent_Org J - are you transporting Sched 3 to the workplace regs?
NC - no, I don't think we need them but it is slightly ambiguous as to how the EA applies here. There is no longer a broader sexual discrimination grounds. The sanctioned single sex spaces don't make that a specific

@NotAllGays @ForWomenScot @TransLucent_Org defense. No one has ever suggested that SSS are not lawful, it's not straightforward to pin down the operation of the law. I don't think the Rs suggest that they are unlawful. I understand that TL may suggest that. They have suggested that sex in the 1992 regs, must be given

@NotAllGays @ForWomenScot @TransLucent_Org a self id lens. The result of that is that say toilets provided for public and staff or used by them both.
J - asks NC to speak up.
NC - the result of TLs submission is that toilets provided for use of both public and staff, would have to be genuine SSS for public but mixed

@NotAllGays @ForWomenScot @TransLucent_Org sex for trans people for 1992 regulations for staff. We don't think the ET should take that seriously. Now back to Goodwin and Rs point.
We need to give the ET the ECHR decisions. Will do so later.
This one in particular is about admissibility. Quotes reference.

@NotAllGays @ForWomenScot @TransLucent_Org A TiM, married to a woman, transitioned, and wanted a GRC and there was no same sex marriage. His claim that the cost of a GRC was an annulment, was manifestly dismissed. Civil partnership cured.
NC - the margin of appreciation in relation to questions of this nature that

@NotAllGays @ForWomenScot @TransLucent_Org require a sensitive balancing of competing claims, as an aside there has been no substantive challenge to Goodwin since published. A post operative TiM who wanted to receive his pension from woman's fund was entitled to it from the date of Goodwin judgement,

@NotAllGays @ForWomenScot @TransLucent_Org the point to take from grant is that the implementation of Goodwin, was laudably prompt and sufficient.
J - Grant is appeals court
NC - yes. Did I give it to you
J - yes

@NotAllGays @ForWomenScot @TransLucent_Org NC - next authority relied upon by Rs, is Garson, that creates an intermediate zone for transexuals not living as a man or a woman. Garson establishes that GRC does not require surgery.
The Rs argument is too much - if Garson establishes an intermediate zone then FWS is wrong.

@NotAllGays @ForWomenScot @TransLucent_Org And both Goodwin and Nico both speak to GRCs. DU does not have a GRC, he has never said that he does. He cannot have one at the material time. Even if Art 8, Goodwin, Garson gave non-medical trans people the right to access opposite SSS, then the Rs need to claim that the GRA

@NotAllGays @ForWomenScot @TransLucent_Org it futile because on self-id as trans, they are entitled to SSS. The same comments apply, it either takes matters no further at all, or it is constrained by the consequences of GRC, either the GRA is a dead letter and FWS is wrong. The Rs also cite Cook & Germany another ECHR

@NotAllGays @ForWomenScot @TransLucent_Org access to toilets of lived sex is a paradigm example of living as one's acquired sex. Cook sets out things protected by Art 8, it doesn't mention toilets, changing rooms, etc. It's about health insurance. There is no express support anywhere in the authorities, for access to

@NotAllGays @ForWomenScot @TransLucent_Org SSS. The FWS judgment gives weight to the rights of women to physical and moral security. The Rs refer to Coleman and the nub of discrim is to avoid suspect classification, and rely on this to say that discrim on basis of pcs is a bad thing. We can go along with this

@NotAllGays @ForWomenScot @TransLucent_Org to a point. The C is not saying he should be excluded from the women's CR because of his pc of GA, but because of his protected characteristics as a man. The reference to male pattern criminality, is a bad point. It may be hard to give this point enough emphasis, this is part

@NotAllGays @ForWomenScot @TransLucent_Org of the reason the Rs have been so intent on controlling language in this matter, it is harder to take on board that men who claim to be women are in fact men; if you call them transwomen and call them she. It is the law w/out a GRC is man is simply a man. He belongs in the

@NotAllGays @ForWomenScot @TransLucent_Org subcategory of men. He is not a woman. I'm sorry to labour this point, the reason I do this is that the Rs approach to language has not just been played out in this tribunal but has been played out up and down the land, it has become taboo, it makes it hard to hang on to the

@NotAllGays @ForWomenScot @TransLucent_Org reality that transwomen are men. A TW with a GRC is simply and factually a man.
To go back to the point for which the Rs on relying on Colemen, reading statistics applying to men as also applying to TIMs, it is unreasonable to object to generalisations on the basis of sex.

@NotAllGays @ForWomenScot @TransLucent_Org For example, men are taller than women, does not need to be separately proved for transwomen. The Tribunal needs to take it as read that such generalisation do apply to TiM. If the Rs want to say that such generalisations do not apply, they need to prove that and they have not.

@NotAllGays @ForWomenScot @TransLucent_Org The Rs want to move TW from the category of men, to prove that those generalisations do not apply to them, they need evidence for that.
I've been speaking for an hour, time for a break?
J - 5 minute break.
Court rises.
End of morning part 1

@NotAllGays @ForWomenScot @TransLucent_Org @threadreadapp unroll please.

@NotAllGays @ForWomenScot @TransLucent_Org @threadreaderapp unroll please