@spen666
N here (niece of
@monkers)
On the parallel thread (Gender Again: Sorry) I introduced myself and availed myself to answer questions.
Rather than watching this unseemly squabble prevail, I will set out my thoughts as if this I was initiating an argument to present before a court.
Monkers is quite properly setting out the case that the case that Dr Victoria McCloud seeks to advance to the ECHR will rely upon proven violation of one or more fundamental (convention) rights. It is possible that I may have some involvement in that case, even if only be way of an informal office discussion, so I will recluse myself from further comment.
Restricting myself to a legal critique of the Supreme Court decision, I'll set out below one argument that suggests that the Supreme Court could have reached an alternative decision.
The
Gender Recognition Act 2004 (GRA) established gender identity as a characteristic to be legally recognised, allowing individuals to amend their legal sex to align with their gender identity. This legislation laid the foundation for understanding "sex" as being inclusive of acquired sex in the category of sex, reflecting a growing recognition of gender diversity.
The
Equality Act 2010, steered through Parliament under the guidance of Melanie Field, provided a comprehensive legal framework to protect against discrimination based on protected characteristics, including sex. Melanie Field's involvement as a key drafter, architect and steward of the legislation connects it to the evolving progression of equality laws.
The
Marriage (Same Sex Couples) Act 2013, also written and guided through Parliament by Melanie Field, explicitly references "Same Sex" in its title, further advancing the recognition of acquired sex being inclusive of acquired sex. By addressing marital rights for individuals whose legal sex may have been amended under the GRA, the 2013 Act reinforces the interpretation of sex in legal contexts as inclusive of acquired sex.
Together, these Acts demonstrate a coherent progression. The GRA informs the understanding of sex as inclusive of acquired sex in the Equality Act, while the later Marriage (SSC) Act underscores its application in contexts such as marriage. By situating the Equality Act between these two pieces of legislation and recognising the continuous influence of Melanie Field, it becomes evident that "sex" within the 2010 Act can be understood to include acquired sex, ensuring consistency across the legal framework.
This coherent progression furthers the linearity of the legal precedent, that there is consistency in the meaning of sex to be taken as appearing on one's birth certificate.
Had the SC followed this reasoning, it would have been the case that fundamental rights established at the ECJ in the case of of
P v. S and Cornwall County Council, also derived directive
Equal Treatment Directive (Directive 76/207/EEC), would have been satisfied.
The ECJ ruled in favor of P, stating that the dismissal of a person for reasons related to gender reassignment was a breach of the Directive. The Court emphasized that the principle of equal treatment extended to discrimination arising from gender reassignment, as it was fundamentally linked to the sex of the individual. This decision marked the first time that discrimination against ''transgender individuals'' on the basis of sex was explicitly recognized in employment law.
This ruling was subsequently considered by the ECHR in the case of
Christine Goodwin v. the United Kingdom.
In the case of
Christine Goodwin v. the United Kingdom, the ECHR addressed several issues,
including discrimination. Goodwin, a trans woman, faced challenges related to her legal recognition as female after gender reassignment surgery. She argued that this lack of recognition led to discrimination in areas like employment, social security, and pensions.
The ECHR found violations of Articles 8 (right to respect for private life) and 12 (right to marry) of the European Convention on Human Rights.
However, it concluded that no separate issue arose under Article 14 (prohibition of discrimination), as the discrimination claims were already examined under Article 8. The Court emphasized the importance of dignity and freedom for trans people and recognized the need for legal measures to address their challenges.
This landmark judgment influenced the introduction of the Gender Recognition Act 2004 in the UK, which allowed trans people to legally have state recognition of their gender identity with a default procedure of amendment of sex recorded at birth to legal sex under the provision in the act of ''for all purposes''. The purpose of marital rights is not a listed exclusion. Therefore the effect is given that sex in the context of the act is the acquired sex.
Given all of the above it can be reasonably argued that an interpretation of the Equality Act is a break in the linearity of legal precedent of not only that which preceded it, but also relevant subsequent statute.
We could continue this journey with a discussion relating to changes in statute following the excise of legal obligations following Brexit. Briefly then, prior ECJ rulings retain legal force. In recognition of this, amendments made to the Equality Act in the name of Kemi Badenoch were required not only to respect the rights afforded to the aforementioned 'P', but also to respect the provisions of allowing more favourable outcomes, and disallowing less favourable outcomes in the furtherance of discrimination law.
