TailWindHome
Active Member
The court being clear and the court saying what you say they said may prove to be two different things
Gender again. Sorry!
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The court being clear and the court saying what you say they said may prove to be two different things
TailWindHome
Active Member
I note you say "should" and not "is"
monkers
Shaman
The crux of this matter is that the Supreme Court is only supreme within the judiciary. It is not intended to be supreme to parliament.
In any given case the Supreme Court is entitled to consider statutory interpretation alone. If the SC goes on to say this can only be what parliament had intended in passing a bill, then parliament is perfectly entitled to be given the opportunity to say ''actually, the previously established meaning was the meaning that was intended''.
The Supreme Court will be aware that if one of its judgments changes what has been understood by parliament to to be within statute, then parliament is entitled to say that the court has effectively 'legislated from the bench'.
What appears to be unravelling is the government messaging this without wishing to embarrass the Supreme Court with the contradiction.
As has been posted on this forum before, that reading down the judgment and comparing with the minutes of the drafting committee meetings behind the Equality Bill, show that the then Solicitor General Vera Baird (now Dame Vera Baird) replied to questions about the rights of a trans woman with a GRC to be under the ground of sex, using the phrase that the purpose of the GRC is to ''put that beyond doubt''. That is a matter of public record.
Further discussion may circle questions concerning where the Supreme Court should have considered that record. However as things stand, the considered opinion is that the Supreme Court was entitled to limit its consideration to statutory interpretation only.
In summary then I am saying that the Supreme Court was entitled to follow the process that it selected, but the question remains whether in so doing it did provide clarification of what parliament intended. People who say that the Supreme Court erred in its approach are entitled both to think so, and to say as much.
In the meantime one can only speculate on the reason for the delay that is frustrating people on either side of the argument. In my own case I will speculate that the government seems to now recognise that the Supreme Court ruling introduces uncertainties around how the Equality Act can function in relation to precedent and subsequent acts, namely the GRA and the SSMA, and also how it can function as a daughter to the HRA.
I will also speculate there is a further discomfort in that if the Supreme Court ruling does as a legal fact entitle non-legal bodies to exercise blanket bans as demanded by Sex Matters, then the legal principle commutes to other judgment made previously under the EqA and other acts arguably becomes interpretable across statute. I will also speculate that the government is content to let the matter rest while parliament is at rest and await the outcomes of the High Court judgment of GLP v EHRC which is predicted to be handed down some time in January.
PS; a note to my detractors, no form of AI was used to assist in the preparation or writing of my post.
In any given case the Supreme Court is entitled to consider statutory interpretation alone. If the SC goes on to say this can only be what parliament had intended in passing a bill, then parliament is perfectly entitled to be given the opportunity to say ''actually, the previously established meaning was the meaning that was intended''.
The Supreme Court will be aware that if one of its judgments changes what has been understood by parliament to to be within statute, then parliament is entitled to say that the court has effectively 'legislated from the bench'.
What appears to be unravelling is the government messaging this without wishing to embarrass the Supreme Court with the contradiction.
As has been posted on this forum before, that reading down the judgment and comparing with the minutes of the drafting committee meetings behind the Equality Bill, show that the then Solicitor General Vera Baird (now Dame Vera Baird) replied to questions about the rights of a trans woman with a GRC to be under the ground of sex, using the phrase that the purpose of the GRC is to ''put that beyond doubt''. That is a matter of public record.
Further discussion may circle questions concerning where the Supreme Court should have considered that record. However as things stand, the considered opinion is that the Supreme Court was entitled to limit its consideration to statutory interpretation only.
In summary then I am saying that the Supreme Court was entitled to follow the process that it selected, but the question remains whether in so doing it did provide clarification of what parliament intended. People who say that the Supreme Court erred in its approach are entitled both to think so, and to say as much.
In the meantime one can only speculate on the reason for the delay that is frustrating people on either side of the argument. In my own case I will speculate that the government seems to now recognise that the Supreme Court ruling introduces uncertainties around how the Equality Act can function in relation to precedent and subsequent acts, namely the GRA and the SSMA, and also how it can function as a daughter to the HRA.
I will also speculate there is a further discomfort in that if the Supreme Court ruling does as a legal fact entitle non-legal bodies to exercise blanket bans as demanded by Sex Matters, then the legal principle commutes to other judgment made previously under the EqA and other acts arguably becomes interpretable across statute. I will also speculate that the government is content to let the matter rest while parliament is at rest and await the outcomes of the High Court judgment of GLP v EHRC which is predicted to be handed down some time in January.
PS; a note to my detractors, no form of AI was used to assist in the preparation or writing of my post.
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bobzmyunkle
Veteran
I would speculate the delay is because the government knows it's between a rock and a hard place. This is not a government that relishes difficult decisions.
monkers
Shaman
Fair.
AuroraSaab
Pharaoh
Vera Baird's personal comments during the drafting process aren't the law. The Supreme Court, in a lengthy explanation, have clarified what the law re the Equality Act was and is. If you disagree you are welcome to campaign to change the law, as is anyone with a law they disagree with.
Once again though, it isn't a blanket ban on trans identifying people however many times you present it as such. It's straightforward. Men aren't allowed in spaces and services that are covered by the Equality Act and which are designated women only, and vice versa (with some exceptions that the SC mentioned). To allow them access might be indirect discrimination to women.
Once again though, it isn't a blanket ban on trans identifying people however many times you present it as such. It's straightforward. Men aren't allowed in spaces and services that are covered by the Equality Act and which are designated women only, and vice versa (with some exceptions that the SC mentioned). To allow them access might be indirect discrimination to women.
monkers
Shaman
You are free and entitled to believe whatever you like. I have no difficulty with that.
However for any other reader, Vera Baird was the Solicitor General throughout the relevant period of being the Chair of the drafting committee, supervising Melanie Field who was the lead author of the Equality Bill, which after undergoing the usual process in both houses of parliament was passed and gained royal assent.
Baird's commentary was not ''personal'' but professional, she was in role. Her remarks were made while in place as Head of the Drafting Committee and in responses to questions to other members of the committee on the text of the finished bill. She then 'guided' the finished Equality Bill through parliament.
As for saying that ''men aren't allowed in'' etc, you need to take note of the recent cases of Kelly v Leonardo and Peggie v NHS Fife. Both cases were brought/supported by Sex Matters and both cases lost. The barrister for Sex Matters, Naomi Cunningham was their Chair and has now stood down. Additionally Allison Bailey has lost her second appeal, this time at the Court of Appeal. She lost on all five claims in her case against Stonewall. The yoyo pattern is not unusual following so-called landmark rulings. This is the system functioning as it should.
In both cases that judges found that it was not unlawful under the Equal Act for a trans person to be present in either toilets or changing rooms. Peggie had claimed harassment in her case, the judge found the opposite, that Peggie had harassed Upton. In the Kelly case the claim failed on all points.
The Good Law Project gained permission from the High Court to challenge the EHRC - the Commission - concerning the interim guidance, later reframed by the Commission as the interim update following criticism and non-acceptance by the government. Revised guidance has been issued to ministers. The intention was not to make this public; however it was 'leaked' to the media and the contents became known. The EHRC submitted a plan which was that based on perception through the personal appearance of a person. It should be noted that judgment from the appearance of a person is unlawful under the Equality Act, so is not a workable 'solution' of making the Supreme Court judgment. Judgment in this case is due in January.
There are ongoing cases of the Darlington nurses, again judgment expected in January. There is the Hampstead Heath Ponds case waiting for permission. Lastly there is the case of Dr Victoria McCloud, a trans woman, former High Court Judge herself and former Master at the Court of Administration. She has made submission which is waiting for procedural checks at the admissibility stage.
Michael O'Flaherty has written to the relevant persons to express concern about the effect of the Supreme Court ruling. This case is interesting, not least because the canny way in which McCloud has worded her submission.
Aurora may wish to wave her hand dismissively and say such nonsense as ''personal remarks'', however the facts are set out above.
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AuroraSaab
Pharaoh
Peggie didn't lose. Her main complaint succeeded. First stage employment tribunals don't take precedent over Supreme Court decisions btw.
If Baird's comment was exactly what was intended to be in the Equality Act perhaps she should have ensured that was in the legislation. The Supreme Court - having looked at the history of the drafting of the EA and all relevant past legal cases - made it clear what the law was and is. It's the only way the Equality Act makes sense.
Naomi Cunningham stood down because her legal practice is increasingly concentrating on the same sort of cases on which Sex Matters campaigns. If she carried on doing both you'd be the first to call it unethical and a conflict of interest. Jolyon Maugham doesn't seem to worry about such things.
monkers
Shaman
Peggie succeeded in parts - these parts related to procedural matters such as relating to NHS Fife's actions to a disciplinary procedure which was poorly conducted. The part relating to the complaint against Dr Beth Upton concerning her right to use the changing room was not successful. Also the accusation that the presence of Dr Beth Upton was tantamount to sexual harassment failed. The judgment reversed that to find that Peggie had harassed Upton.
In Kelly the case failed on all points.
Naomi Cunningham was engaged as barrister in both cases. Both cases failed.
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monkers
Shaman
If Baird's comment was exactly what was intended to be in the Equality Act perhaps she should have ensured that was in the legislation. The Supreme Court - having looked at the history of the drafting of the EA and all relevant past legal cases - made it clear what the law was and is. It's the only way the Equality Act makes sense.
The Supreme Court's judgment does not rest on examination of these documents, it rests on statutory interpretation. As already stated the SC is entitled to take this approach. However the approach they selected has left the result open to criticism by some and to suspicion by others, especially as the court took the somewhat unusual step of not allowing the voices of trans people or trans advocate groups to give oral evidence.
There are a number of replies to questions made by Baird made in ordinary language that explain the intent without ambiguity. In my words rather than her own, the intention was for the EqA to function on an a la carte basis to ensure that each protection could exist in a legal space and sense that was contextual to the complaint made out. It also included a provision of dual discrimination claim. This was intended in a way that a dual discrimination offence was made, for example, an exclusion on the basis of an individual being a black woman, both race and sex could taken together in a single claim. In the consideration of inclusion of trans women as being the ordinary and normal social circumstance, Baird set out that the deeming provision gave the grounds for inclusion without doubt but for the provisions related to legitimate aims and proportionality tests. The EqA did not need to set out existing legal principles such as so-called blanket bans being unlawful as these legal principes, instruments, and test already existed and were in place. (see for example FDJ v Secretary of State made out in the name of Raab).
TailWindHome
Active Member
They'll be in no hurry.
CXRAndy
Pharaoh
No one in their own body would ever dare quote it as solid basis for an argument
