Thread by @tribunaltweets

Naomi Cunningham has finished her submissions. Judge Kemp has said he and the Panel will keep questions until the end. We expect Jane Russell to begin her submissions after this break.

Our reporting can be found here on our Substack.
open.substack.com/pub/tribunaltw…

We resume.
JR - I've given you some more paper, a short article on FWS by Prof Norrie.
NC - 2 matters; CE and I are both melting, can we turn down the heat and take our jackets off?
J - I've asked on the heat and yes of course take your jackets off.

NC - we have redacted the document but are waiting for the Rs to confirm they are happy.
JR - AW has not yet reviewed them,
NC - this is unacceptable, we were asked to redact 3 words. The Art 10 rights of the C, the press are being impinged by this delay.

J - can this be done now.
<JR/LB/AW huddle to review the document on LB's laptop>
NC - a soft copy should make it easy, search for the offending word....
JR - we're doing that now.
<LB/AW conferring>
JR - we are content with redactions.

NC - today's speaking note, the skeleton argument and our closing submissions will now be released to any who want them.
JR - Theodore Woodward - gave instruction to med students 'when you hear hoofbeats think of horses not zebras' The C describes herself as a realist about

sex. A careful exam of her case exposes a striking level of unreality. There are a number of inconvenient truths. The first during the xmas eve encounter, the C went off piste. The 2nd despite a doc search that could rival a roving public inquiry, the C has been unable to

produce any smoking gun. The 3rd that trans people, a small group, less the 1/2% of pop, have rights, established domestically and internationally. The 4th is that the UK's equality body code of practice has reflected those rights. The 5th is lack of any reliable evidence that

could justify take those rights away. Namely, no reliable evidence that TW pose any risk to women. Belief rests on 2 unevidenced propositions. The first, that TW are men, and have male patterns of offending. VV evidence supports this. The 2nd is that all men are potentially

violent. They are not. The 6th inconv truth is the credibility and reliability of both C and Dr U. Before I go on to outline the structure of my submission, the last few minutes in her oral submissions, she listed 10 matters I paraphrase as weird, she said these could be

explained by a gender identity delusion. Zebras not horses, none of it evidenced and not very realistic.
Start by outlining parameters of this case, then address you on the law including Strasbourg and Luxembourg, then permission to use the CR and then the interactions

between C & DU, and then the ancillary issues. The process of suspension, i/x, d/x. I'm going to deal with inferences you have been asked to draw. i will address you on these tomorrow.

First, what this case is and is not about. The difficulty that C faces, trying to fit a square peg in a round hole. It is clear that the thrust of her case is what can only be described as a gc campaigning position, seeking to exclude DU and TW in general from the CR. That is

the indirect CR. The problem she has - there is no authority that says an employer must do this. FWS says service providers may but does not require SSS. The 1992 regs do provide for separate provision for men and women but do not delineate who falls into those categories.

And they provide an exception; provide single lockable cubicles in any event.
J - for toilets that is
JR - yes for toilets rather than a changing room. A further hurdle C has set herself, focus is on the reason for the treatment, C's case demands an analysis that adds a

further step. Asks you to find that things happened because of her belief but also asks you to find her belief is true. You do not need to do so; any more than you would need to determine that the Ark was made in 7 days in a case about Christian belief.

In the same way, you do not need to determine if there are only 2 bio sexes or that sex is immutable. We heard from Dr Curren that there chromosomal variations. And also that there is a 3rd situation beyond large/small gametes, there is absence of a gamete. In relation

to immutability, that was the point of the GRA, to give legal recognition to the change in sex and gender. It uses thoses terms interchangeably. Dealing with intersex conditions as being very rare - Dr C said 1/1000=3000. C's submissions said 4/10000. Dr C's

evidence is more positive than mine. To disprove the binary, you only need one. From article 'There is nothing particularly startling about the law using its own definition', refers to parent who has an adoption order rather than biological connection.

Moving on to direct discrim - doesn't work, because C's comparator - a man using the men's changing room would be asked to share a room with a transman. The C's claim is that it was worse for her because she's a woman. Moving on to harassment claim. Dr U never said or did

anything that was harassing or of a sexual nature to C. The case against the Board - was because C had realised she had not gotten away with bullying DU in the CR on Xmas eve.
Moving on to the law, mainly domestic. But may touch on Strasbourgh.

Beginning with 1992 regs; reg 24 concerns CR, separate facilities for reasons of propriety. Nothing in FWS changes that, it applies to the EA, these regs are derived from Health & Safety Act. Even if I'm wrong, it's hard to see how propriety can be engaged in the CR when we've

heard people were not taking all their clothes off. The place for that was the basement where there were showers. I've address you on Goodwin in my longer sub, I ask you to draw these 2 propositions, para 90 reflects legal recognition give to trans people because of personal

autonomy. The right to establish a transperson identity, the unsatisfactory position where transpeople live in an intermediate zone. The 2nd is that refusal to recognise a person's gender interferes with ARt 8 right to a private life. NC has mischaracterised Goodwin

Says I have mischaracterised Goodwin. I want to unpack this, I may do this tomorrow as it relates to the ARt 8 rights. I can say with certainty I don't go as far as what NC suggests. Says what it says about right to recognise identity, and be seen as gender.

I want to address you on another case (missed) this has given rise to the use of the phrase living fully as a man or a woman. That gives rise to a debate.
J - this is in Coleman?
JR - Para 8 the values of underlying equality are dignity and autonomy. What a discriminator

does is deprive someone of valuable options. Defined in para 9, the ability to design the course of our lives through a succession of choices. The discriminator interferes, takes away, the ability of the person to make those choices because of the PC. Someone's life is shaped

Not by the choices they make but by the prejudice of someone else. DU's life is being shaped by the prejudices of someone else. TransLucent have referred to a number of Luxembourg authorities, I will address you further on those tomorrow. A few words about Croft and FWS

as the last part of this section. The C says croft does not survive the GRA, EA and FWS judgement.
Dealing next with FWS. FWS was about the statutory interpretation of the EA. And went on to say, it's not the role of the court to adjudicate the arguments in the public domain

or to define the word woman other than when it is used in the EA. It is not about toilets, workplaces, etc. It did discuss the exceptions that can be relied on to allow duty bearers (service providers) to discriminate in certain circumstances. These exceptions are concessions

to human frailty. We do not insist on strict equality in all contexts. We make certain accommodations it situations where there is reason to do it. It's a balancing act and it was before and since FWS. FWS does not impose a requirement to discriminate against trans people

It does permit discrimination within the exceptions in Sched 3, for service providers. The SC made it clear that they were not disadvantaging or removing protections for trans people. The SC affirmed that it agreed with Forstater EAT that a refusal to use preferred pronouns

could constitute harassment. Accords with the ETBB for England and for Scotland. EHRC statutory code of practice, says trans people should be treated as gender they present, it should always be a balancing act. It accords with the Luxembourg statue. The C says that the

Code of Practice was always wrong, it is wrong in the light of FWS. The only way in which the CoP conflicts with FWS is that is says 'should' treat trans people as acquired gender. They both identify carveouts. Only an inconsistency if you say they must exclude trans people.

It doesn't say that. The Board clearly took the view that there was no coherent reason to exclude DU. Up until the complainant, no one has complained. And no one has complained since. Despite the media coverage which has been almost universally favourable of the C.

It should encourage like minded people to come forward. C has said that they are discouraged by the climate of fear, on the last day of the trial she said there were 13 people who shared her concerns. None of these people have come forward. Not even the C said in chief, said

that there was a climate of fear. No basis for that assertion.
C said 'the board has been deliberately elaborating misled', refers to a submission made by Sex Matters about Stonewall. The implication is that Stonewall had the resources to organise an int'l conspiracy.

This illustrates that certain aspects of C's claim are founded upon points that are at best, inherently unlikely. One can understand that a suggestion might be made by a campaigner holding GC views. That doesn't mean it is true.
JR - I'm going to move on to permission

use the CR. But is this a good time for a break?
Steno - it's very hot.
J - let's take a short break now.
Court rises.

End of this afternoon session.
@threadreaderapp unroll please