Thread by @nickwallis

This tweet 🧵comprises the second morning session of Day 2 of For Women Scotland's attempted judicial review of the policy of allowing some trans-identifying men to be housed in female prisons in Scotland. For the first session's tweets, see here:

https://x.com/nickwallis/status/2018987926936518947?s=20

A reminder that nothing I tweet is a direct quote unless it is in "direct quotes". All tweets are a summary or characterisation of what is being said.

Some abbreviations:

FWS - For Women Scotland - also petitioners
SM - Scottish Ministers - respondents
TG - transgender
PC of GR - Protected Characteristic of Gender Reassignment
TW - trans woman (male)
TM - trans man (female)

TIM - trans-identified man or male
TIF - trans-identified female
AO - Aidan O'Neill - FWS lead counsel
TC - Tony Convert FWS advocate
SHRC - Scottish Human Rights Commission (intervenors)
KM - Kenny McBrearty KC - SHRC counsel

EHRC - Equality and Human Rights Commission (itnervenors)
JS - Janys Scott KC - EHRC counsel (I think - that's what @tribunaltweets have - they are tweeting this too)

@tribunaltweets LR - Lady Ross - judge

@tribunaltweets LR - yes
JS - we are here as intervenors to assist the court. I adopt the submission by the Dean of Faculty - I am appearing in their stead. Apologies
LR - no problem
JS - my terminology is from FWS - a person who is a bio man but who has the PC of GC I will describe as a TW

@tribunaltweets JS - and a bio woman with the PC of GR I will call a TM
and GR is as defined in the EA. The EHRC has general duties

@tribunaltweets in s3 we are obliged to respect HR and dignity and worth of each individual - valuing diversity. We have duty to all with PCs - whether sex or GR. Court nor SM cannot ignore men, TW or TM

@tribunaltweets In opening I should say its regrettable there a temp hiatus in national guidance. We have issued guidance and the code was drafted in 2011 - it predated FWS and it required serviced providers to treat transsexual people in the gender role in which they presented

The SPS guidance was written in light of 2011. But that is not current. We have clarity from the SC and we welcome that, but we now need to work it through.
LR but 2011 code is technically still extant because it has not been revoked
JS no its with the minister

LR the UK gov
JS sorry yes indeed - but codes are not law
LR but yes they are there to assist the court
JS it would be if it were there
LR okay

JS current policy or guidance requires reconsideration in the EHRC's view. Putting a TW in the fem estate makes it difficult to align with the law because you then create mixed sex provision
LR because putting a TW in a single sex prison makes it mixed sex
JS yes it undermines

... the exception. What FWS says is TM are bio men. In the SPS guidance there is provision for a TM to be put in the women's estate. That's based on 2011 interpretation which says F prisoners must not share same accomm as male prisoners - sep accomm be in sep parts of a prison

but must be kept sep as possible. The EHRC accepts there is justification for separation as it pursues a legit aim. Privacy, dignity, safety, female services. W have no choice about being in prison and they are a vuln community.
LR does the fact of being in prison...

... what bearing does that have in where you place prisons in the whole set of justifications for SS (single sex) provision? A prison is almost unique.
JS yes it does because it exacerbates difficulties - you can't just walk away. You are where you are you have to be there. It

... enhances the need for single sex provision. So if we come to the terms of the EA...

... just taking S9 of EA2010 - a service provider must not discrim against someone with a PC. Part 6 a person must not do anything when providing a public function must not do anything leading to harassment etc

The exceptions - a person does not contravene sex discrim if a joint service would be less effective or its done with proportionate means to achieving a legit aim [reads more]

So that can be characterised as "separate but equal" and "separate but different". These provisions contrast with a school provision as schools can remain single sex if the numbers of the opposite sex are small. But in prisons this is absolute.

If bio men are admitted to a service alongside women it will be a joint service. As the submission for the EHRC puts it you end up with the mixed sex facility. That takes us back to the EA and try to exclude some men but not others you get into direct discrim difficulties...

Re GR - [reads from the act "a person does not contravene s29 so far as related to GR discrim..."]

looking at that if you provide separate services if you exclude a trans person providing it is a proportionate means of achieving a legit aim. That means removing TW from W prisons is legit. This was expressed in the magisterial point made by Lord Hodge in FWS [at the SC]

117 These key concepts are then applied in the subsequent parts of the EA 2010 which
set out what conduct is unlawful and the exemptions that can be invoked in certain
circumstances. We summarise them by way of overview in the next 11 paragraphs.
118. Part 3 (see also Schedules 2 and 3) makes it unlawful (in relation to all protected
characteristics except marriage and civil partnership – section 28(1)(b) – and age so far
as relating to those under 18 – section 28(1)(a)) to discriminate against (in other words,
directly or indirectly), or to harass or victimise a person when providing a service (which
is defined in section 31 to include the provision of goods or facilities) or when exercising
a public function.

211. Part 3 of the EA 2010 regulates the provision of services and public functions, and
we have set out above the terms of the prohibition in section 29 (making it unlawful,
among other things, to discriminate in the provision of a service or the exercise of a public
function). Schedule 3 contains exemptions from this general prohibition. As we shall
explain, some of these permit what would otherwise constitute gender reassignment
discrimination but make no similar provision for persons issued with a full GRC. Other provisions permit carve-outs from what would otherwise constitute sex discrimination
under the EA 2010. In enacting these exemptions, the intention must have been to allow
for the exclusion of those with the protected characteristic of gender reassignment,
regardless of the possession of a GRC, in order to maintain the provision of single or
separate services for women and men as distinct groups in appropriate circumstances.
These provisions are directed at maintaining the availability of separate or single spaces
or services for women (or men) as a group – for example changing rooms, homeless
hostels, segregated swimming areas (that might be essential for religious reasons or
desirable for the protection of a woman’s safety, or the autonomy or privacy and dignity
of the two sexes) or medical or counselling services provided only to women (or men) –
for example cervical cancer screening for women or prostate cancer screening for men,
or counselling for women only as victims of rape or domestic violence.

212. So far as sex discrimination is concerned, paragraph 26 of Schedule 3 provides
that the provision of separate services for persons of each sex will not constitute unlawful
sex discrimination in the provision of services (contrary to section 29) where joint
services for both sexes would be less effective and such provision is a proportionate
means of achieving a legitimate aim.
(1) A person does not contravene section 29, so far as relating
to sex discrimination, by providing separate services for
persons of each sex if— (a) a joint service for persons of both
sexes would be less effective, and (b) the limited provision is a
proportionate means of achieving a legitimate aim.
(2) A person does not contravene section 29, so far as relating
to sex discrimination, by providing separate services differently
for persons of each sex if— (a) a joint service for persons of
both sexes would be less effective, (b) the extent to which the
service is required by one sex makes it not reasonably
practicable to provide the service otherwise than as a separate
service provided differently for each sex, and (c) the limited
provision is a proportionate means of achieving a legitimate
aim.
213. If sex has its biological meaning in this paragraph, then a service-provider can
separate male and female users as obvious and distinct groups. For example, a homeless
shelter could have separate hostels for men and women provided this pursued a legitimate
aim, which might be the safety and security of women users or their privacy and dignity
(and the same for male users). By contrast, if sex means certificated sex, the service-
provider would have to allow access to trans women with a GRC (in other words,
biological males who are female according to section 9(1)) to the women’s hostel. The
following practical difficulties would arise.

First, it would be difficult or impossible for the service-provider to distinguish between trans women with and without a GRC
because, as we have explained, the two groups are often visually or outwardly
indistinguishable. Secondly and more fundamentally, it is likely to be difficult (if not
impossible) to establish the conditions necessary for separate services for each sex when
each group includes persons of both biological sexes. For example, it is difficult to
envisage how the condition in paragraph 26(2)(a) (a joint service for persons of both sexes
would be less effective) could ever be fulfilled when each sex includes members of the
opposite biological sex in possession of a GRC and excludes members of the same
biological sex with a GRC. In other words, if as a matter of law, a service-provider is
required to provide services previously limited to women also to trans women with a GRC
even if they present as biological men, it is difficult to see how they can then justify
refusing to provide those services also to biological men and who also look like biological
men.

JS that is the SM's problem.
reads on:
"214. Thirdly, it also follows that although the gender reassignment exception in
paragraph 28 (see below) does apply, it would be challenging to prove that exclusion of
those with the protected characteristic of gender reassignment is a proportionate means
of achieving a legitimate aim (for example, protecting the safety of women) when sex
means certificated sex and the group includes trans women with a GRC (who are
biologically male but legally female) and excludes trans women without a GRC."

[JS Then refs par 219: "219. Paragraph 28 provides an additional exception in the context of provision of
separate and single-sex services in relation to gender reassignment discrimination. It
provides relevantly as follows:
“(1) A person does not contravene section 29, so far as relating
to gender reassignment discrimination, only because of
anything done in relation to a matter within sub-paragraph (2)
if the conduct in question is a proportionate means of achieving
a legitimate aim.
(2) The matters are— (a) the provision of separate services for
persons of each sex; (b) the provision of separate services
differently for persons of each sex; (c) the provision of a service
only to persons of one sex.”]

And starts reading from 220:
"The references in this paragraph only make sense as references to biological sex.
Provided it is proportionate, paragraph 28 exempts gender reassignment discrimination
but only in the context of the provision of separate services for men and women or single
services to one sex. To rely on this exception there must be a separate or single-sex service
that satisfies the establishment conditions to which we have just referred (in paragraphs
26 and 27 for example) and as we have observed, these provisions cannot on the face of
it operate coherently if provision of services only to persons of one sex means provision
of services to a group comprising women (biological females) and trans women with a
GRC (biological males but legally female) but not to trans men with a GRC (biological
females but legally male). The difficulty of establishing the conditions for a separate or
women-only service on an approach tied to certificated sex makes it difficult to envisage
any circumstances where the ability to exclude on gender reassignment grounds could
operate."

JS we now need to look at 2nd part of par 221: "if sex means biological sex, then provided it is proportionate, the female only
nature of the service would engage paragraph 27 and would permit the exclusion of all
males including males living in the female gender regardless of GRC status. Moreover,
women living in the male gender could also be excluded under paragraph 28 without this
amounting to gender reassignment discrimination. This might be considered
proportionate where reasonable objection is taken to their presence, for example, because
the gender reassignment process has given them a masculine appearance or attributes to
which reasonable objection might be taken in the context of the women-only service being
provided. Their exclusion would amount to unlawful gender reassignment discrimination
not sex discrimination absent this exception."

JS so that's where we get the TM situation dealt with by Lord Hodge when setting out the general position
LR so.. well... does it completely address the SM's TM issue?

LR there may be a continuing issue for a TM in the F estate
JS you can remove a TM from the F estate legally - you can apply par 28 to make separate provision for them - what the EHRC submission comes down to is that this has to be solved on the ground in the estate and that...

... is not in the current guidance.
JS further to probs with the mixed estate - you then get a sit when a man WANTS to be in THAT prison, but can't be told he can't go into a F prison because it is now mixed sex.

JS you could not deny any man from going into a mixed sex prison or it could be discrimination
LR there is a wide discretion for minister to allocate prisoners, but you can't do it on the basis of sex
JS correct - the SM passed these regs in 2011 and should hold themselves...

... to the law that you have to have a female estate.
LR what about the "reasonably practical" bit of S26.
JS how far do you expect it to go - it doesn't allow you to mix up male and female accomm. The law already says you can't. "Reasonably practical" doesn't derogate from

... the principle in the law which doesn't allow mixed sex accomm. It's not a free-for-all. The SM have got themselves in some difficulty with regard to EA legislation.

JS One cannot discrim in the exercise of a public function. If they are required by an enactment to do something other s29.6 - they have to set 29.6 aside and perform the duty of the enactment.

JS there are a number of things to contend with in terms of whether the SM is exercising a public function and the provision of services goes by the bore. The EHRC's position is that they're not mutually exclusive.

JS if you look at FJD - there's an assumption that schedule 3 still applies and the same with Coll - the exercise in public function is looked at against sched 3. You can look at in case law. Or common sense. If you are providing food shelter in a prison - that's a service.

You cannot say I am required by another piece of legislation to do something different and that is the assumption... when Lord Hodge refers to hospital wards. It does so as a public function, but they're still providing a service.

So even if you are providing a public function. you're still providing a service. Secondly even if SM are providing a public function it's likely to be in their margin of appreciation to keep it single sex.

There is nothing in the EA or HR which is absolute. The q in applying a bright line rule is are the SM contravening the HR Act? The only two cases I was going to refer to is the P [?] case - it's quite well encapsulated in that.

The ref to margin of appreciation and reliance on Animal Defenders which we've already covered.

JS it's at par 48 - don't need to read it out. It's about bright line provisions.
LR have you got a p number for me
JS par 27 on p1852 and highlighted section par 48 on p1840 (of the bundle no the judgment!)

JS the position of the commission is that we cannot say that S would rule us out and I think we all agree that.
LR but I want to understand your last point about the poss room for an extreme case
JS if you have a risk to life - an extreme end of Art 3. If you get to that level

... there is a potential for relief.
LR are you accepting the SM point
JS no they are saying our policy okay and we can do this generally and we are saying you have a problem with your policy and it's opening up potential for challenges

LR you're saying there can be bright line no exceptions in terms of policy
JS yes
LR but there might be an extreme case
JS yes
LR what does that do to the policy
JS maintain it - without creating risk to life
LR does the guidance have to say this - no TW except in extreme circs

JS one cannot have someone at risk of life or serious injury - the whole removal of men from the F estate is designed to serve that. It's for the SM to think v carefully about their practical provision on the ground in terms of the Public Sector Equality Duty

LR okay let's pick this up after lunch. Can we reconvene at 1.50pm. Okay thank you.
[court rises]

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This thread will end here. The afternoon session thread starts here at 1.50pm:

https://x.com/nickwallis/status/2019035731394736252?s=20

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