Supreme Court Ruling on Trans Rights in Equality Act

[Woodchopper]

London transport police have said male officers will now search trans women

wtf? Isnt the whole point of gender-segregated-searching the preferences of the searched?

I done a google and that might not be happening after all:

Transgender detainees can request strip-searches are carried out by an officer they are “comfortable with”, even if this means abandoning the search and releasing them early, British Transport Police (BTP) officers have been told.

Campaigners claim the guidance, seen by The Times, in effect tells staff they must allow trans suspects to be searched by officers of the gender they identify as, if they request this.

They have accused BTP of not being honest with the public, as in response to last week’s Supreme Court judgment the force publicly rolled back a policy that allowed male officers who identified as women — providing they have a gender recognition certificate — to strip-search biological women.

https://www.thetimes.com/uk/crime/artic ... -wnh7cnp3k

[IvanV]

Everyone - politicians, press - is now talking like the Supreme Court has now decided our trans rights and that's that then. Implement what they say, and forget about it.

All the Supreme Court did was decide what one particular Act actually means. And although it did not say so, for it was not its job, I felt it made it reasonably clear that the meaning was untenable. Some people have pointed out that this interpretation puts us back into violation with previous ECHR rulings. Though probably the people saying this are not the kind of people Starmer feels he has to listen to.

[Gfamily]

Everyone - politicians, press - is now talking like the Supreme Court has now decided our trans rights and that's that then. Implement what they say, and forget about it.

All the Supreme Court did was decide what one particular Act actually means. And although it did not say so, for it was not its job, I felt it made it reasonably clear that the meaning was untenable. Some people have pointed out that this interpretation puts us back into violation with previous ECHR rulings. Though probably the people saying this are not the kind of people Starmer feels he has to listen to.

A confounding factor is the response by the EHRC (not the ECHR) which, to me at least, came down as poorly thought through, and very un-nuanced .

[Sciolus]

And indeed at least one person is intending to take it back to the ECHR. It's pretty poor that Starmer hasn't realised that what the judgement clarifies about the law is that there is a contradiction at the heart of it.

[El Pollo Diablo]

Everyone - politicians, press - is now talking like the Supreme Court has now decided our trans rights and that's that then. Implement what they say, and forget about it.

All the Supreme Court did was decide what one particular Act actually means. And although it did not say so, for it was not its job, I felt it made it reasonably clear that the meaning was untenable. Some people have pointed out that this interpretation puts us back into violation with previous ECHR rulings. Though probably the people saying this are not the kind of people Starmer feels he has to listen to.

A confounding factor is the response by the EHRC (not the ECHR) which, to me at least, came down as poorly thought through, and very un-nuanced .

It's un-nuanced because this is one aspect of the culture war that Boris Johnson won. The head of the EHRC was appointed by him, specifically to do what she's doing.

The path that this is likely to take is now reasonably clear: there's a good chance the ECHR will rule that the Equality Act is now in breach of human rights since the supreme court ruling. Starmer being Starmer will look to respond to that, but meanwhile the tory press and our mental right wing parties will be popping blood vessels all over the place crying for us to withdraw from the Court.

[TopBadger]

Starmer being Starmer will look to respond to that, but meanwhile the tory press and our mental right wing parties will be popping blood vessels all over the place crying for us to withdraw from the Court.

And the average voter on the street will see this as "fiddling while Rome burns"... because the vast majority of people aren't trans and have no dealings with trans people, and have a lot more pressing issues to contend with (getting a GP / Dentist appointment, a job, healthcare for elderly relatives, etc, etc).

FWIW I think Starmer shouldn't get involved in this at all.

[Woodchopper]

Everyone - politicians, press - is now talking like the Supreme Court has now decided our trans rights and that's that then. Implement what they say, and forget about it.

All the Supreme Court did was decide what one particular Act actually means. And although it did not say so, for it was not its job, I felt it made it reasonably clear that the meaning was untenable. Some people have pointed out that this interpretation puts us back into violation with previous ECHR rulings. Though probably the people saying this are not the kind of people Starmer feels he has to listen to.

A confounding factor is the response by the EHRC (not the ECHR) which, to me at least, came down as poorly thought through, and very un-nuanced .

It's un-nuanced because this is one aspect of the culture war that Boris Johnson won. The head of the EHRC was appointed by him, specifically to do what she's doing.

The path that this is likely to take is now reasonably clear: there's a good chance the ECHR will rule that the Equality Act is now in breach of human rights since the supreme court ruling. Starmer being Starmer will look to respond to that, but meanwhile the tory press and our mental right wing parties will be popping blood vessels all over the place crying for us to withdraw from the Court.

It could take years for an ECHR ruling (a lot depends upon how urgently they would act), and then the UK government could take years considering a response to the ruling. Even then, there is little that the ECHR or the Council of Europe can do to enforce a ruling. So the outcome could be that nothing happens.

Looking at the latest opinion polls there might be a Reform led government in 2028 or 2029.

[dyqik]

... because the vast majority of people aren't trans and have no dealings with trans people, ...

This is just false. They just didn't realize it at the time.

I personally have encountered at least a dozen trans people in family and professional settings. Many of them you would have no idea at all that they are trans unless they are talking about it to you, you knew them before they transitioned, or because some bigot has decided to make a thing of it.

[IvanV]

And indeed at least one person is intending to take it back to the ECHR. It's pretty poor that Starmer hasn't realised that what the judgement clarifies about the law is that there is a contradiction at the heart of it.

And since this ruling makes the UK non-compliant with an earlier ECHR judgments, then that is an obvious thing to do.

What Starmer wants to do, as today's Private Eye makes clear, is get away with saying nothing. Because it is a subject almost as poisonous as Brexit. So they are pretending, that has fixed it. When actually, as you say, the judgment makes quite clear the Act is not fit for purpose. The Act is based on an untenable assumption that everyone can by classified by biology into 2 categories, and the category they are assigned to should apply for every purpose.

[Woodchopper]

And indeed at least one person is intending to take it back to the ECHR. It's pretty poor that Starmer hasn't realised that what the judgement clarifies about the law is that there is a contradiction at the heart of it.

And since this ruling makes the UK non-compliant with an earlier ECHR judgments, then that is an obvious thing to do.

Which ECHR judgement though? As far as I remember, the Goodwin case which preceded the Gender Recognition Act covered a trans person getting revised official documents etc. I don’t think that’s been affected.

What Starmer wants to do, as today's Private Eye makes clear, is get away with saying nothing. Because it is a subject almost as poisonous as Brexit. So they are pretending, that has fixed it. When actually, as you say, the judgment makes quite clear the Act is not fit for purpose. The Act is based on an untenable assumption that everyone can by classified by biology into 2 categories, and the category they are assigned to should apply for every purpose.

I agree that the legislation is a mess, but I expect that the government could get away with doing nothing to fix it.

[noggins]

Can anyone explain this?

https://www.theguardian.com/football/20 ... in-england


The Football Association has announced that it will ban transgender women from playing in women’s football from 1 June. It follows the ruling from the supreme court that the term “woman” in the Equality Act refers only to a biological woman.

The decision comes barely a month after the FA ruled that transgender women could continue to play in the women’s game as long as they kept their testosterone levels below 5 n/mol for at least 12 months.

However the FA has now performed a significant U-turn after receiving legal advice from its KCs that the supreme court’s ruling meant it had to fundamentally change its rules.

I don't follow how the Supreme Courts ruling forces the FA to change their policy - or are the FA lying / stupid ?

[Woodchopper]

Can anyone explain this?

https://www.theguardian.com/football/20 ... in-england


The Football Association has announced that it will ban transgender women from playing in women’s football from 1 June. It follows the ruling from the supreme court that the term “woman” in the Equality Act refers only to a biological woman.

The decision comes barely a month after the FA ruled that transgender women could continue to play in the women’s game as long as they kept their testosterone levels below 5 n/mol for at least 12 months.

However the FA has now performed a significant U-turn after receiving legal advice from its KCs that the supreme court’s ruling meant it had to fundamentally change its rules.

I don't follow how the Supreme Courts ruling forces the FA to change their policy - or are the FA lying / stupid ?

I'm not an expert, disco probably knows better than I do, but I assume that the explanation is something like the following.

As per sex discrimination legislation, organizations can't discriminate between men and women in employment and when providing services. In most cases that means that men and women are treated equally, for example a bar isn't allowed to have a men only section and a restaurant can't have a rule that it only employs women as waiters. But in a few cases mixing men and women has profound social disadvantages and then its necessary for men and women to be segregated but given equal opportunity. Most types of sport fall into this category.

So for football on grounds of safety and meaningful competition for women there need to be separate men and women's teams playing in separate leagues. A woman could sue the FA for violating the sex discrimination law if the FA didn't organize women only teams and leagues on the grounds that not doing so would discriminate against her as such matches in which men and women played against each other would be unsafe etc. The FA could avoid being sued in the past so long as it was assumed that trans women were included in the legal definition of women, and safety and competition problems could be mitigated by limiting trans women's testosterone levels and excluding individuals on a case by case basis.

As discussed upthread, the Supreme Court adjudication that the the sex discrimination law defines men and women biologically has very wide implications. In this case it means that a team or league that includes trans women is not women only, but is mixed. So a women could sue on the grounds that the FA hasn't provided women with an equal opportunity to play football as in practice the choice, in terms of the legal definition, would be between a league for men and a mixed league for men and women.

Delighted to be corrected by people who know more than me.

[discovolante]

Can anyone explain this?

https://www.theguardian.com/football/20 ... in-england


The Football Association has announced that it will ban transgender women from playing in women’s football from 1 June. It follows the ruling from the supreme court that the term “woman” in the Equality Act refers only to a biological woman.

The decision comes barely a month after the FA ruled that transgender women could continue to play in the women’s game as long as they kept their testosterone levels below 5 n/mol for at least 12 months.

However the FA has now performed a significant U-turn after receiving legal advice from its KCs that the supreme court’s ruling meant it had to fundamentally change its rules.

I don't follow how the Supreme Courts ruling forces the FA to change their policy - or are the FA lying / stupid ?

I'm not an expert, disco probably knows better than I do, but I assume that the explanation is something like the following.

As per sex discrimination legislation, organizations can't discriminate between men and women in employment and when providing services. In most cases that means that men and women are treated equally, for example a bar isn't allowed to have a men only section and a restaurant can't have a rule that it only employs women as waiters. But in a few cases mixing men and women has profound social disadvantages and then its necessary for men and women to be segregated but given equal opportunity. Most types of sport fall into this category.

So for football on grounds of safety and meaningful competition for women there need to be separate men and women's teams playing in separate leagues. A woman could sue the FA for violating the sex discrimination law if the FA didn't organize women only teams and leagues on the grounds that not doing so would discriminate against her as such matches in which men and women played against each other would be unsafe etc. The FA could avoid being sued in the past so long as it was assumed that trans women were included in the legal definition of women, and safety and competition problems could be mitigated by limiting trans women's testosterone levels and excluding individuals on a case by case basis.

As discussed upthread, the Supreme Court adjudication that the the sex discrimination law defines men and women biologically has very wide implications. In this case it means that a team or league that includes trans women is not women only, but is mixed. So a women could sue on the grounds that the FA hasn't provided women with an equal opportunity to play football as in practice the choice, in terms of the legal definition, would be between a league for men and a mixed league for men and women.

Delighted to be corrected by people who know more than me.

Haha I feel pretty called out when it's suggested I might know about something I haven't actually looked into properly.

Still haven't read the judgment I either haven't had the time or if I have I haven't had the mental capacity to give it the attention it deserves. But I do need to so maybe one for my train journey down south next week if not before.

[noggins]

Thanks.

[noggins]

95 Sport

(1)A person does not contravene this Act, so far as relating to sex, only by doing anything in relation to the participation of another as a competitor in a gender-affected activity.

(2)A person does not contravene section 29, 33, 34 or 35, so far as relating to gender reassignment, only by doing anything in relation to the participation of a transsexual person as a competitor in a gender-affected activity if it is necessary to do so to secure in relation to the activity—

(a)fair competition, or

(b)the safety of competitors.

(3)A gender-affected activity is a sport, game or other activity of a competitive nature in circumstances in which the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity.


These are the sports bit of the Equality Act i could find: I cant see how the judgement is making the FA change their policy .

[Tristan]

I cant see how the judgement is making the FA change their policy .

Why not? If women's sport is limited to women and the EA defines them in the way the Supreme Court concluded it does then it should be fairly clear.

[Woodchopper]

95 Sport

(1)A person does not contravene this Act, so far as relating to sex, only by doing anything in relation to the participation of another as a competitor in a gender-affected activity.

(2)A person does not contravene section 29, 33, 34 or 35, so far as relating to gender reassignment, only by doing anything in relation to the participation of a transsexual person as a competitor in a gender-affected activity if it is necessary to do so to secure in relation to the activity—

(a)fair competition, or

(b)the safety of competitors.

(3)A gender-affected activity is a sport, game or other activity of a competitive nature in circumstances in which the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity.

They're the dispensations I mentioned earlier.

Paragraph (1) allows the FA to organize separate leagues for men and women (without the dispensation that would be an example of sex discrimination).

Paragraph (2) allows the FA to treat trans people differently, such as the FA's previous requirement that a trans woman's testosterone is below a certain level (again, without the dispensation that would be an example of discrimination against people who have reassigned their gender).

Paragraph (3) defines where the dispensation applies - in practice any [ETA competitive] activity in which men have an inherent physical advantage over women.

These are the sports bit of the Equality Act i could find: I cant see how the judgement is making the FA change their policy .

The judgment doesn't refer to the FA. What I'm assuming happened is that the FA's lawyers advised the management that if it didn't make the policy change then the FA would likely be sued and would lose. We aren't going to see their legal advice but I assume that it would be due to the wider implications, and I gave an example upthread. The lawyers may or may not have given sound advice. But I assume that they have a good track record as the FA will have deep pockets.

[Tessa K]

No matter how deep their pockets they won't get involved in anything that could end up being bad PR. Best to play safe.

[Woodchopper]

No matter how deep their pockets they won't get involved in anything that could end up being bad PR. Best to play safe.

Yes, of course, there are other motivations as well.

[Tristan]

What on earth are Stonewall doing here? This is legally illiterate. All the SC did was clarify the law. This is what the law is and always has been.

Now, is Stonewall want to campaign for the law to be changed they’re welcome to do so, but pretending that law is different to what it actually is in part of what caused this mess in the first place.

IMG_2684.jpeg (531.39 KiB) Viewed 986 times

[noggins]

95 Sport

(1)A person does not contravene this Act, so far as relating to sex, only by doing anything in relation to the participation of another as a competitor in a gender-affected activity.

(2)A person does not contravene section 29, 33, 34 or 35, so far as relating to gender reassignment, only by doing anything in relation to the participation of a transsexual person as a competitor in a gender-affected activity if it is necessary to do so to secure in relation to the activity—

(a)fair competition, or

(b)the safety of competitors.

(3)A gender-affected activity is a sport, game or other activity of a competitive nature in circumstances in which the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity.

They're the dispensations I mentioned earlier.

Paragraph (1) allows the FA to organize separate leagues for men and women (without the dispensation that would be an example of sex discrimination).

Paragraph (2) allows the FA to treat trans people differently, such as the FA's previous requirement that a trans woman's testosterone is below a certain level (again, without the dispensation that would be an example of discrimination against people who have reassigned their gender).

Paragraph (3) defines where the dispensation applies - in practice any [ETA competitive] activity in which men have an inherent physical advantage over women.

These are the sports bit of the Equality Act i could find: I cant see how the judgement is making the FA change their policy .

The judgment doesn't refer to the FA. What I'm assuming happened is that the FA's lawyers advised the management that if it didn't make the policy change then the FA would likely be sued and would lose. We aren't going to see their legal advice but I assume that it would be due to the wider implications, and I gave an example upthread. The lawyers may or may not have given sound advice. But I assume that they have a good track record as the FA will have deep pockets.

I see nothing mandating that a women's sport must exclude transwomen. Rather that now they probably can exclude transwomen “for being men” instead of issues of competition annd or safety. So the FA are going to exclude transwomen because they want to, not because they must.

[IvanV]

And indeed at least one person is intending to take it back to the ECHR. It's pretty poor that Starmer hasn't realised that what the judgement clarifies about the law is that there is a contradiction at the heart of it.

And since this ruling makes the UK non-compliant with an earlier ECHR judgments, then that is an obvious thing to do.

Which ECHR judgement though? As far as I remember, the Goodwin case which preceded the Gender Recognition Act covered a trans person getting revised official documents etc. I don’t think that’s been affected.

What Starmer wants to do, as today's Private Eye makes clear, is get away with saying nothing. Because it is a subject almost as poisonous as Brexit. So they are pretending, that has fixed it. When actually, as you say, the judgment makes quite clear the Act is not fit for purpose. The Act is based on an untenable assumption that everyone can by classified by biology into 2 categories, and the category they are assigned to should apply for every purpose.

I agree that the legislation is a mess, but I expect that the government could get away with doing nothing to fix it.

The ECHR required that Goodwin, who had transitioned with gender-reassignment surgery, should be treated for all purposes as a woman, not according to her birth gender. This included pension and marriage, which in those days had sex-specific laws, although that is no longer the case.

By this interpretation of the EA, Goodwin must now be treated for all purposes where discrimination is relevant as a man. Of course the pension and marriage laws were much the main issue at that time, and those have been fixed to be non-discriminatory. Yes, there were documentation issues. But it's not much use getting a replacement birth certificate, which - I haven't checked back - I think was one of the points, if the law says your original one still applies.

Now according to the law, Goodwin should go into the Gents. I don't think that is tenable. People would in general expect that someone with breasts, no penis, and feminised appearance should go into the Ladies. But probably she will continue to do that and no one will complain, at least in places where she is not known. The problem arises when there are people who knows who she is and decide to make a fuss about it.

Timescales for ECHR cases and then fixing the law accordingly are long. So probably the government will do nothing, lose a case in the ECHR some time well into the 2030s, and think about fixing it some time around 2040. And the present government will probably think that's fine.

[Woodchopper]

And since this ruling makes the UK non-compliant with an earlier ECHR judgments, then that is an obvious thing to do.

Which ECHR judgement though? As far as I remember, the Goodwin case which preceded the Gender Recognition Act covered a trans person getting revised official documents etc. I don’t think that’s been affected.

What Starmer wants to do, as today's Private Eye makes clear, is get away with saying nothing. Because it is a subject almost as poisonous as Brexit. So they are pretending, that has fixed it. When actually, as you say, the judgment makes quite clear the Act is not fit for purpose. The Act is based on an untenable assumption that everyone can by classified by biology into 2 categories, and the category they are assigned to should apply for every purpose.

I agree that the legislation is a mess, but I expect that the government could get away with doing nothing to fix it.

The ECHR required that Goodwin, who had transitioned with gender-reassignment surgery, should be treated for all purposes as a woman, not according to her birth gender. This included pension and marriage, which in those days had sex-specific laws, although that is no longer the case.

I don't think it did though.

Here's a summary published by the ECHR

Christine Goodwin v. the United Kingdom 11 July 2002 (Grand Chamber The applicant complained of the lack of legal recognition of her changed gender and in particular of her treatment in terms of employment and her social security and pension rights and of her inability to marry. The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention in the present case, owing to a clear and continuing international trend towards increased social acceptance of transsexuals and towards legal recognition of the new sexual identity of post-operative transsexuals. “Since there [we]re no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, the Court reache[d] the conclusion that the notion of fair balance inherent in the Convention now tilt[ed] decisively in favour of the applicant” (§ 93 of the judgment). The Court also held that there had been a violation of Article 12 (right to marry and found a family) of the Convention in the applicant’s case. It was, in particular, “not persuaded that it [could] still be assumed that [the terms of Article 12] must refer to a determination of gender by purely biological criteria” (§ 100). The Court added that it was for the State to determine the conditions and formalities of transsexual marriages but that it “f[ound] no justification for barring the transsexual from enjoying the right to marry under any circumstances” (§ 103).

This covers the right to an amended birth certificate and the right to marry. You can check the judgment at https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-60596%22]} which upheld that her rights were violated concerning Article 8 Right to respect for private and family life, and Article 12 right to marry. But the court didn't uphold Goodwin's claim that there were wider issues under Article 14 on Prohibition of discrimination, and under Article 13 Right to an effective remedy.

Similar appears in other ECHR cases in the summary: https://www.echr.coe.int/documents/d/ec ... entity_eng

Its upholding claims under Articles 8 and 12. Concerning Article 14 hasn't upheld claims that rights were violated in three cases. An Article 14 violation was upheld in one case (A.M. and Others v. Russia (no. 47220/19)) but that concerns the right of someone to have access to their children.

But perhaps I've missed something.

[Sciolus]

This is what pisses me off so much about this topic. There we* were, having a reasonable, measured, considered discussion, trying to understand the legal and practical implications of the new situation. Then someone comes along and posts something from that wasteland of nuance and considered thought, Twitter, and calls him a c.nt. There then follows pages of tedious exegesis purely aimed at determining whether this particular person is on Our Team or Their Team. I vote the whole Maugham blather should be moved to the Pit as, at best, an irrelevant derail that does nothing to advance anyone's understanding of the issues, and at worst a focus on dividing anyone who discusses the topic into Right Thinkers and Evil Heretics that poisons the whole discussion.

*OK, not me so much, but other people.

[Stephanie]

This is what pisses me off so much about this topic. There we* were, having a reasonable, measured, considered discussion, trying to understand the legal and practical implications of the new situation. Then someone comes along and posts something from that wasteland of nuance and considered thought, Twitter, and calls him a c.nt. There then follows pages of tedious exegesis purely aimed at determining whether this particular person is on Our Team or Their Team. I vote the whole Maugham blather should be moved to the Pit as, at best, an irrelevant derail that does nothing to advance anyone's understanding of the issues, and at worst a focus on dividing anyone who discusses the topic into Right Thinkers and Evil Heretics that poisons the whole discussion.

*OK, not me so much, but other people.

Have split some posts off to here