There has been a lot of discussion on social media in the days following my previous post on the legal consequences of repealing the Gender Recognition Act.
Thanks Michael. Your critics come across as having entirely overlooked or failed to completely engage with your argument. Your patience and persistence is very helpful in engaging critics' of the GRA with the challenges we face, of which many of us are clearly naive.
I think there's a bit of a common law versus civil law divide going on here. Without wishing to stereotype, my experience with Italian lawyers is that they really struggle to wrap their heads around the common law. I'm good friends with an Italian lawyer turned academic, who freely admits that he only really 'got' common law once he started teaching English contract law to undergraduates. This is despite having a PhD in comparative law and making a good faith effort to understand, something I doubt this particular critic of Michael's has much interest in doing.
Thanks Michael. Is it theoretically possible for there to be a legal challenge to the GRA on the basis that it undermines the rights of others? I don't know if that would be a judicial review or if it would have to go to ECHR or what, but it seems to me that the case law that led to it is a mess where, as with so much touched by gender ideology, nobody's rights were considered when satisfying the desires of a small number of men.
For an ECHR challenge it isn't possible to bring a claim in the abstract on the basis that the legislation itself has failed to have due regard to the rights of others. You would need somebody who was a 'victim' for Convention purposes (i.e. they have been directly and individually affected by some provision of the GRA) For example, let's say the Supreme Court rules that a GRC changes sex for Equality Act purposes and as a result a single sex group is required to admit an opposite sex member and/or gets shut down for refusing to do so OR (this is more tricky) that they are under threat of not being able to operate in future should they fail to admit an opposite sex member. They could make a claim to the ECHR saying that the GRA, as interpreted, has violated freedom of association or religious freedom or whatnot.
Thanks Kate. That's exactly the kind of case I was thinking about. Do you have any insight about a possible JR in the same context? That would obviously be a lot quicker, cheaper and easier. It could also become persuasive in any future challenge that does go to a higher court. I appreciate all of this legal analysis, but the goal should still be to overturn the GRA in whatever way possible. If there are ways we can use the courts to knock holes in it, I think we should be exploring every option.
14 hrs ago·edited 14 hrs agoLiked by Michael Foran
If I've understood correctly the scope for JR will be quite limited once the Supreme Court decide FWS (however it's decided). Public law isn't my area though so I couldn't say confidently either way.
Edit to add that even if we did get an ECHR case saying that aspects of the GRA have been interpreted in a way that violates another Convention right, this is unlikely to be framed in robust terms. Strasbourg tend not to be overly prescriptive about how Convention-protected interests are balanced in conflict cases, they are much more concerned with procedures and case-by-case proportionality assessments (which in this context could well just return us to our current mess rather than making things better)
Thanks Michael. Your critics come across as having entirely overlooked or failed to completely engage with your argument. Your patience and persistence is very helpful in engaging critics' of the GRA with the challenges we face, of which many of us are clearly naive.
I think there's a bit of a common law versus civil law divide going on here. Without wishing to stereotype, my experience with Italian lawyers is that they really struggle to wrap their heads around the common law. I'm good friends with an Italian lawyer turned academic, who freely admits that he only really 'got' common law once he started teaching English contract law to undergraduates. This is despite having a PhD in comparative law and making a good faith effort to understand, something I doubt this particular critic of Michael's has much interest in doing.
Thanks Michael. Is it theoretically possible for there to be a legal challenge to the GRA on the basis that it undermines the rights of others? I don't know if that would be a judicial review or if it would have to go to ECHR or what, but it seems to me that the case law that led to it is a mess where, as with so much touched by gender ideology, nobody's rights were considered when satisfying the desires of a small number of men.
For an ECHR challenge it isn't possible to bring a claim in the abstract on the basis that the legislation itself has failed to have due regard to the rights of others. You would need somebody who was a 'victim' for Convention purposes (i.e. they have been directly and individually affected by some provision of the GRA) For example, let's say the Supreme Court rules that a GRC changes sex for Equality Act purposes and as a result a single sex group is required to admit an opposite sex member and/or gets shut down for refusing to do so OR (this is more tricky) that they are under threat of not being able to operate in future should they fail to admit an opposite sex member. They could make a claim to the ECHR saying that the GRA, as interpreted, has violated freedom of association or religious freedom or whatnot.
Thanks Kate. That's exactly the kind of case I was thinking about. Do you have any insight about a possible JR in the same context? That would obviously be a lot quicker, cheaper and easier. It could also become persuasive in any future challenge that does go to a higher court. I appreciate all of this legal analysis, but the goal should still be to overturn the GRA in whatever way possible. If there are ways we can use the courts to knock holes in it, I think we should be exploring every option.
If I've understood correctly the scope for JR will be quite limited once the Supreme Court decide FWS (however it's decided). Public law isn't my area though so I couldn't say confidently either way.
Edit to add that even if we did get an ECHR case saying that aspects of the GRA have been interpreted in a way that violates another Convention right, this is unlikely to be framed in robust terms. Strasbourg tend not to be overly prescriptive about how Convention-protected interests are balanced in conflict cases, they are much more concerned with procedures and case-by-case proportionality assessments (which in this context could well just return us to our current mess rather than making things better)