Daphne Preston-Kendal
The two fundamental planks of today’s decision are:
1. the Gender Recognition Act 2004 did not change the meaning of ‘man’ and ‘woman’ in the Sex Discrimination Act 1975, although the relevant section of the GRA on its face did not contain any limitation on the application of a certificate in determining who is a ‘man’ and who a ‘woman’
2. the Equality Act 2010 inherited from the SDA 1975 this definition wholesale, since its purpose was to consolidate existing law
Daphne Preston-Kendal
The good news:
This case was fought by the Scottish government, which could now introduce primary legislation in Holyrood to reverse the effect of the decision in Scotland. I expect there would be another fight over this: ‘Equal opportunities’ is, with some exceptions, a Reserved Matter in the Scotland Act 1998. They may well be able to get this in under an exception.
Trans people in England and Wales and NI could not benefit from this, though.
We’ll see how the Scottish govt plays this now.
Daphne Preston-Kendal
I think both of these are wrong individually – in using the long title of the EA 2010 to ascertain its purpose, it appears to have ignored the potential effect of the word ‘reform’ in ‘harmonise and reform’ – but this is now the law.
Daphne Preston-Kendal
This cause concerned positive discrimination and whether a trans woman appointed to a position with a gender quota would count as a woman. The court said no.
It might be taken to imply that a trans man appointed to a similar position also would not count as a man, but much of the reasoning in the written decision considers only trans women. Maybe a trans man would count as a man if the cause were fought again: stranger things have happened in British law.
Daphne Preston-Kendal
Also, the court affirmed certain protections against negative discrimination do continue to apply to trans women. There are two ways this could be read:
The first and most obvious is that trans people of gender x cannot benefit *in general* from positive discrimination in favour of gender x, but can benefit from protection against negative discrimination against gender x.
This would be the better of the two interpretations. Unfortunately …
Daphne Preston-Kendal
The court’s basis for affirming this protection was existing precedent that negative discrimination is still illegal if based on a characteristic that the discriminating party perceived the discriminated party to have, whether or not that perception is correct. (Concrete [invented] example: if someone were discriminated against on the basis of a Jewish-sounding or Muslim-sounding name, but were not actually Jewish or Muslim, they could still claim religious and racial discrimination.)
Daphne Preston-Kendal
For this protection, a Gender Recognition Certificate is irrelevant, since it is based on perceptions, not facts.
Christine Lemmer-Webber 🌀
@dpk rip your mentions but good summaries
GNU social JP is a social network, courtesy of GNU social JP管理人. It runs on GNU social, version 2.0.2-dev, available under the GNU Affero General Public License.
All GNU social JP content and data are available under the Creative Commons Attribution 3.0 license.