The case against the “LGB Alliance”

The Good Law Project argues the “LGB Alliance” (LGBA) should not be a charity. In September the tribunal heard evidence, and in November legal argument, but no judgment has been issued. The GLP gives an account of the case, and links to its legal argument (29 pages) and witness statements (62 pages). GLP asks the tribunal to find that LGBA is not a charity, and direct the Charity Commission to remove it from the register of charities.

LGBA believes trans people and trans rights groups pose a threat to society and endanger women, children, and LGB people, with self-ID laws, trans women in women’s services, medical treatment for trans children and education on gender identity in schools. This is all false. Their campaigning harms LGB people.

The tribunal may not give a decision for months, and may never decide whether the Charity Commission was right to register LGBA as a charity. First, it has to decide whether Mermaids had any right (“standing”) to bring the case. The Charity Commission argue that if Mermaids has no standing, the tribunal should not comment on whether it considers LGBA is a charity. Both GLP and LGBA argue that it should.

The problem is, if Mermaids has no standing but the tribunal say LGBA should not have been called a charity, there is no clarity about what should happen next. Should LGBA lose charitable status? If so, there is no point in a restriction on “standing”. Anyone could bring a case to deregister a charity. GLP argues Mermaids has standing because LGBA works to thwart its activities and reduce its funding.

While waiting for the decision, you could read the GLP’s documents, or this brief introduction. I want to give a flavour of the reasons why LGBA should not have the rights and privileges of a charity, and guide you through those documents. They are drafted by much more experienced lawyers than I, but here is their general drift:

The “carefully drafted” Equality Act

The government wants people to believe trans women can be excluded from women’s loos. Is that true, and does it matter?

Stuart Andrew, minister for Equalities, summarised the government position in Parliament on 8 March:

“A consistent approach to GRCs is fundamental to the effective functioning of legislation in this area. The GB-wide Equality Act was carefully drafted in the light of, and to reflect, the specific limits of the UK-wide Gender Recognition Act 2004. It is important, for the effective functioning of the Equality Act, that the recognition of international GRCs is in line with the basic principles of the GRA.”

This is ridiculous. “Consistent” means there should be no GRC without a psychiatric diagnosis. But, “The basic principles of the GRA” are outdated and cruel. They require a psychiatric diagnosis from a specialist, when there is a waiting list of five years to see that specialist. Delays cause suicide. A diagnosis of trans makes no more sense than a diagnosis of homosexuality. There are 262,000 trans people, according to the census, and just 7127 GRCs were issued from 2004 to the end of last year. That shows the complete failure of the GRA.

“GB-wide” and “UK-wide” means the government would fight if Holyrood challenged its block on the GRR Bill. What about “carefully drafted”? The Equality Act says services can be single-sex or separate-sex for various good reasons, such as privacy. Then it says trans can be excluded if there is a “Proportionate means of achieving a legitimate aim” (PMOALA).

The interpretation of the EHRC Code of Practice, the High Court case of Ann Sinnott, the textbook on transgender law, and, a shadow cabinet member tells me, Harriet Harman KC who drafted the Equality Act and piloted it through Parliament, is that trans women with or without a GRC are entitled to use women’s loos, etc, unless there is a PMOALA to stop us. The EHRC, in its guidance from 2022, equivocates. It says, “Excluding a trans person from, the separate or single-sex service of the gender in which they present might be unlawful if you cannot show such action is a proportionate means of achieving a legitimate aim.”

Suella Braverman, as Attorney General, gave the Government view in August. Others are plugging it enthusiastically now.

Anti-trans campaigners and transphobes- two sets with a high degree of overlap- want to ensure there are no trans women in women’s loos. Most people have more important things to worry about. People don’t like confrontation. If I walk into a women’s loo, it is highly unlikely anyone will try to stop me.

Service providers don’t want to be sued. If a staff member tries to stop me, I might make a claim under the Equality Act. If anyone objects to me going in, it is highly unlikely that they can make any sort of legal claim that their rights have been infringed. I can’t see such a legal argument myself, and have not read one. So, there’s only a risk of being sued if they stop me. Most legal advisers will tell them that.

Service providers also don’t want bad publicity. Anti-trans campaigners such as “Baroness” Emma Nicholson try to give bad publicity to shops which allow trans women in women’s changing rooms, but so far have not had much traction.

Loos are unpleasant to linger. We use them and we get out, like anyone else. I find women’s loos pleasanter than men’s, and a trans man told me he found men’s better. We do no harm in loos.

It is for the courts to interpret the law, not the government. A former Master of the Rolls said putting trans women on men’s wards would be unlawful harassment under the Equality Act, as it would violate our dignity. It’s the same for loos. Stuart Andrew was not telling the courts what they should decide, which would be a clear breach of judicial independence, just what he wants everyone else to believe. I hope that won’t work.

Trans women are also wary of confrontation, but we are probably all right for now.

Genocide

Is there a genocide against trans people?

Nicola Sturgeon’s resignation and trans

Holyrood must challenge Westminster’s baseless blocking of the Gender Recognition Reform Bill, or it will be open season on Scottish Bills. And trans people might feel a little worry at Nicola Sturgeon stepping down, when Kate Forbes, the anti-trans, anti-abortion Presbyterian might be the choice for leader of “feminist” anti-trans campaigners. But the coverage has been shocking.

Why did Sturgeon leave? Because, after eight fantastically successful years as First Minister, she may not have the energy to carry through the independence strategy. The SNP meets to discuss this in Glasgow next month. The idea of calling the UK general election a de facto poll on independence, and the strength and sureness of touch needed to handle the aftermath whatever the polling in winter 2024/5, requires one leader to establish themself, wholly committed to the policy if it is chosen, from this year.

In the Guardian, Herald columnist Dani Garavelli wrote a comment article generally praising Sturgeon, showing her deranged opposition to GRR. It is as if GRR affects everyone in the UK, rather than a few thousand trans people in Scotland. “The accusation that she has squandered her right to be considered a feminist must be painful.” No, an accusation is painful if there is a half-truth in it. That accusation only deserves scorn and disgust.

Garavelli writes that there were “errors of judgment” on GRR, because of Sturgeon’s “reluctance to listen to anyone outside her inner circle”. Why should she listen to a few obsessive transphobes, when most of Scottish civil society supported GRR?

These attack lines indicate the complete lack of proportion of the hate campaigners, not any problem with Sturgeon. It was the same at the press conference: she was asked if the row over Isla Bryson spending a night in a women’s prison was “the final straw”. Only because of the utter hatred of the anti-trans campaigners, whose t-shirts read “Nicola Sturgeon, destroyer of women’s rights”. This is the woman who enabled Me Too complaints against her predecessor Alec Salmond to get as far as they did.

The Telegraph headline was insane. On the front page, it screamed “Sturgeon brought down by trans row”. Its first sentence claimed “her radical approach to transgender rights cost her the support of her party”, though almost all her MSPs voted for the GRR Bill, and her MPs challenged the blocking at Westminster. It claims the SNP leadership may ditch the GRR Bill, with an anonymous quote from “one party source” who could be anyone. That is a fight the devolution settlement cannot afford to lose. However it mentions in passing other possible reasons for her resignation, such as the police investigation into £600,000 of donations to the SNP being “missing”.

The Herald had “New leader should ‘correct policies’ of Nicola Sturgeon era”, without a single mention of trans. Unfortunately it also had Alison Rowat, whose second suggestion for the reason Sturgeon resigned was “the gender recognition reform fiasco”. What fiasco would that be, then? The 86-39 final vote on Stage 3? Or the Tories, trying to distract from their economic mismanagement by picking a fight with Scotland?

The Edinburgh Evening News had Labour MP for Edinburgh South Ian Murray write about her record in government, (he was against it) with no mention of trans.

The Times had Iain Martin arguing that independence (which is the SNP raison d’être) would be a disaster. As an aside he referred to her “appalling handling of the transgender issue”- again- how? Was it the three consultations over more than five years? It also had speculation that the Bill might fall because the First Minister should decide to sue Westminster, there might not be a new one by 17 April which is the deadline for judicial review, and Sturgeon should not so bind her successor’s hands. Utter drivel.

Then it had an article quoting at length anti-trans campaigners celebrating. There were 396 words on tiny hate group Four Women Scotland, and, as an afterthought, 121 words on Britain’s premier LGBT charity Stonewall. 4WS would no doubt celebrate Kate Forbes as leader. How feminist of them.

The SNP cannot back down from the fight over GRR, which they will win. Meanwhile, the Scottish Greens leaders Patrick Harvie and Lorna Slater would leave the coalition if the SNP backed down.

In a festival of transphobia, a strong contender for the most transphobic article was in The Scotsman. It suggested the new First Minister might just drop the GRR Bill, or negotiate with the Tories “who are busy making allies of the gender critical movement”- no. Really??

It connected the Bill to placing “transmen who are convicted sexual offenders”- I think it means one trans woman, Isla Bryson- to women’s prisons. I despair.

Is the film “Adult Human Female” transphobic?

What does the film “Adult human female” say about trans people?

It is a film of talking heads. One woman will talk for a minute or so, then another woman will talk for less. The rapid interchange gives no time to think about or challenge the things said.

It is a film of ridiculous falsehoods. The only man to appear, a gay man called Simon Case, said that trans kids were a new phenomenon in 2013. In the 1980s when I first heard of other trans people, there was already a clichéd narrative, that the trans person knew when they were a small child. Many trans people will say the same now. Puberty blockers were first given to trans children in 1994.

Petitioning the government

If you care about something deeply, and want to make a difference, why not- start a petition on the UK government website? It’s so user-friendly. “What do you want us to do?” it asks. It wants a headline. Then, “Tell us more”. Why do you want government or parliament to do this? It only allows 800 characters, including spaces, for background and additional information, so you might be better to draft before going on site. Then you need five supporters’ email addresses.

It has to meet the “petition standards”, but this is a low bar. It has to call for a clear action within the government or parliament’s responsibilities. It should not contain false or unproven statements. It should not be “offensive or extreme”, which includes petitions that negatively focus on a group of people because of characteristics such as gender identity. This rule is interpreted narrowly.

The petition to find the 200 lost refugee children was rejected. It says 440 have gone missing and only 200 have returned, but an official refused it saying the state is already looking for the children. Though not very hard.

906,229 people signed to call an immediate general election, and were brushed off. The most signatories ever asked to revoke article 50: 6,103,056.

Recently, the site has allowed hate petitions, but these are in a sense reassuring: they get fewer signatories than petitions for rights. One wanted gender identity removed from school relationships education. It got 38,403 signatures in six months, less than the 55,947 for “Increase funding for NHS transgender services”. The government did not respond to the hate petition, but said it was increasing funding and seeking to offer access to specialist interventions in primary care. That would be great. Waiting lists are still long.

The highest petitions on a search for gender are 140,768 to recognise nonbinary which was debated in Westminster Hall and 137,271 to Reform the GRA, by removing the need for a medical diagnosis, which was also debated.

Petitions are closed after six months, so the same request can be made again and again. There is a current petition to recognise nonbinary, closing on 13 June 2023. Obsessive anti-trans campaigner Natalie Bird wants trans women not to be counted as women in crime statistics, and has gained just 297 signatures in more than two months. But when she claims “The GRA has resulted in violent males being placed in women’s prisons”, she is clearly “negatively focusing” on trans people. She has breached the petition standards, but got away with it.

Obsessive anti-trans campaigner, and profiteer from the huge sums of money available to haters Maya Forstater has done better, though not as well as allies’ petitions. She’s got 76,124 caring enough to click a link or two to demand that “sex” in the Equality Act means biological sex. She wants all trans women excluded from all women’s services, and she does not care if women with androgen insensitivity are also legally excluded.

This is an attack on trans women. Now, we can go into women’s services. If Forstater got her way, we could not. But the petition was let through. The government response says there’s no need, it is easy to exclude trans women without such a change in the law.

A mirror petition to commit to not amending the Equality Act’s definition of sex has run more than two months to get 12,728 signatures. The government response says they are committed to single-sex services, referring to the EHRC 2022 guidance, not the 2011 code of practice, which takes precedence.

Almost on level pegging is a petition to repeal the GRA, again scaremongering about trans women. It says the GRA “causes avoidable harm to women and children who fear male violence”. That is a clear attack on trans women because we are trans.

In only a few days, the petition to reverse the decision to block the GRR (Scotland) Bill has got over 25,000 signatures. The government has not yet responded.

Other petitions just started this month include one to recognise nonbinary people and remove the requirement for a medical diagnosis for a GRC, and one to require self-contained gender-neutral toilets with a basin in all new buildings, rather than stalls with communal sinks.

The hate petition to stop the GRR Bill was rejected on 19 December because it was the responsibility of Holyrood not Westminster at the time: it came out just before the 86-39 vote in Edinburgh to pass the Bill.

Holyrood petitions are only open for four weeks, rather than six months in Westminster. There’s one to withdraw the guidance to Scottish schools on supporting trans pupils. Well, at least from that, I learned about the guidance (pdf). The haters can’t avoid spreading good news.

Parliament debates blocking Gender Recognition Reform

“Transgender people deserve our respect, our support and our understanding.” Alister Jack and the Tory government proceeded to give us their contempt, gaslighting and othering. He made the most blatantly hypocritical statement in the debate:

“We need to take the heat out of this debate. We are dealing with a reduction in safeguards for women and children.”

No, he was talking about demonising trans people. Stewart Hosie said he should apologise to us. Instead, Stephen Flynn, leader of the SNP at Westminster, made “an apology to those people… who have hopes and aspirations for the future and who have fought so hard for a piece of legislation for so long and now see their hope being taken away from them.”

There are three debates recorded in Hansard:

Kemi Badenoch and international gender recognition

The government proposes to take away legal rights from trans people. This is new. Previously, they have denied our legal rights, or proposed additional rights only to refuse them, or threatened to block rights. Now, the Minister “for” women and equalities, Kemi Badenoch, proposes to take rights away. But, will this happen? Probably not. If it did, would it affect any trans people? No.

The Scottish GRR Bill proposes to recognise the gender of people who have changed gender in their country of origin automatically, but now anyone who comes to the UK after a gender change has to apply for another GRC, under GRA s1(1)(b).

Immigrants can get a British GRC if they already have GR abroad. They need evidence of that GR, probably some sort of official document, and a statutory declaration of whether they are married or in a civil partnership. They need to be from a country or territory approved in a list. That list is in The Gender Recognition (Approved Countries and Territories) Order 2011. It includes most of the US, Australia, Canada, and EU, and some other Council of Europe countries. It includes South Africa, South Korea and Uruguay.

Kemi Badenoch proposes to remove those countries if their GR system is not “equivalently rigorous” to the English system. She writes, “It should not be possible for a person who would not satisfy the criteria to obtain UK legal gender recognition to use the overseas recognition route to obtain a UK Gender Recognition Certificate. This would damage the integrity and credibility of the process of the Gender Recognition Act.”

This does not affect Scottish GRCs under the new system. They will still be UK GRCs. But someone from Uruguay or Malta, say, with GR at home, would need a diagnosis by a specialist psychiatrist. That makes no sense, and doctors object. This is ridiculous. The English system has no credibility.

From the UN report on gender identity, these countries use self-declaration: Argentina, Belgium, Brazil, Colombia, Denmark, Iceland, Ireland, Malta, Norway, Portugal, Switzerland, and Uruguay.

So, what if someone trans from that list comes to the UK after the UK no longer recognises their GR?

Well, they will still have their original passport, which will give their correct gender. If their driver’s licence is recognised, you don’t need a GRC to get a British licence showing your correct gender (it’s coded in the driver number). If they get “Indefinite leave to remain” in the UK, then they still use their original passport. If they get British citizenship, gender on the passport does not require a GRC.

If they get married, their gender on the marriage certificate will matter to them, but might not require a GRC. Would a registrar insist on writing that a trans woman bride’s previous status was “bachelor” rather than “spinster”?

If they married abroad, that should be recognised whether their gender is recognised or not. Britain recognises gay marriages. England recognises a foreign marriage if it was valid according to local law when it was carried out, and if any previous marriages of the parties were dissolved in a way English law recognises.

Certainly it won’t affect what toilets they use, or even if they can use a women’s refuge.

The GRP gives statistics of the number of GRCs granted, but not whether they are granted to British people or to immigrants. There were 256 in July to September 2022.

Possibly, nobody will be affected by the new regulation. The government, unable to govern the country or avoid recession, resorts to mindless posturing. If they wanted to take action about sexual violence they could fund refuges or prosecute rape. There is no potential incident of sexual violence now, which would be prevented by the regulation. It is done solely for Badenoch to pretend to be protecting cis women by reducing trans rights, and demonise trans people.

They are removing trans people’s rights. They have not done this before. It is the first time LGBT+ legal rights have gone backwards in the UK since Section 28 of the Local Government Act 1988.

But, the regulation cannot be introduced without a vote approving it in Parliament. This is the procedure. First, it would go to the Joint Committee on Statutory Instruments. They must ensure it is legal. They should recognise that it breaches human rights and international human rights treaties, and block it.

If it got past that committee, it would be referred to a Delegated Legislation Committee, where any MP can speak. In rare cases, SIs go to the House of Commons for a debate.

If passed, the regulation could be challenged by seeking judicial review. The challenger would have to be a native of one of the countries removed. They might not need to have had their gender changed, or even to be trans. They could show that a potential right had been removed, and argue this was wrong.

It makes me terribly sad. Kemi Badenoch does this not to prevent sexual violence but to attack trans people and foment culture war. The civil service time spent looking at other countries’ GR procedure could be used to imitate them, but instead is used to condemn.

The Scottish Daily Express linked their report to the GRR Bill. The Times claimed that this would allow Westminster to cease to recognise Scottish GRCs, but there is no such power in the Gender Recognition Act. The Guardian did a hostile article, calling it a “trans travel ban”. Well, it is quite unpleasant if New Zealand recognises your transition but your paperwork reverts when you come to the UK. You would still be socially transitioned but there would be this state hostility to your transition.

Added: There were 190 GRCs granted on the “Overseas Track” in 13 years. Badenoch’s ploy is a steamroller to crack an imaginary nut. But the government picks up its campaign against trans people, particularly trans women.

Elaine Miller

After standing in the public gallery of the Scottish Parliament, lifting her skirts, so that she appeared to be flashing her genitals though it later emerged that she was wearing sheer tights and a “merkin”, Elaine Miller has demonstrated that she is not fit to practice as a physiotherapist. Can any action be taken?

Sex, gender recognition, and the Equality Act

Could my sex be “that of a woman” without me being a woman? Could I be a woman, but not a woman according to the definition of “woman” in the Equality Act? Or does the Scottish Public Boards legislation only affect Scottish Public Boards (SPB)? The Outer House of the Court of Session considered that legislation again. The case may be appealed to the Inner House, which previously decided that the definition of “woman” did not include a trans woman without a Gender Recognition Certificate (GRC), for the purposes of the Scottish Parliament’s devolved powers to enact legislation on SPBs. But I have a GRC.

s9 of the Gender Recognition Act (GRA) says my “sex [became] that of a woman” when I got my GRC, and that my acquired gender for all purposes is female. Note “female” not “feminine”- sex and gender are conflated. The Scottish gender recognition Bill leaves this section unchanged.

But s212 of the Equality Act says “’woman’ means a female of any age”. The purpose of s212 was to protect girls: your parents can make a claim under the Equality Act for you before you become adult.

The petitioners in the case, FWS, claim to campaign for women’s rights and children’s rights. However they only campaign against trans rights. This time, they couched it as a loss of rights: a trans man with a GRC would no longer be preferred for appointment to an SPB. They demanded a “rigid biological definition of sex” so that a GRC would change nothing.

To enact the SPB legislation, the Scottish government had obtained specific devolved powers from Westminster. The Scottish government argued that the first FWS case only concerned the extent of those powers, and decided they did not include the right to prefer trans women without a GRC for appointment to SPBs. So the case did not affect any other matter defining “woman”, “man”, “gender” or “sex”. FWS had won almost nothing. My GRC says I am female, so I am female according to the SPB legislation. This does not affect the operation of the Equality Act, which is yet to be decided.

The EHRC intervened, as the public body which supports Equality law. It confirmed the value of a GRC- the GRA shows there is no irreconcilable difference between gender and sex. It is not possible to have an acquired gender without an acquired sex. It agreed with counsel for the Scottish government.

The LGB Alliance intervened to say that trans rights are opposed to gay and lesbian rights. The Equality Network, a real LGB rights campaign group, said the opposite.

The judge looked at the first SPB case, and concluded (para 44) that its basis is that “sex” and “gender reassignment” are separate protected characteristics, not that “sex” in the Equality Act always and only means “biological” sex. The case is authority only on SPBs, not wider discrimination law or the interpretation of the Equality Act.

Then the judge considered whether a trans woman with a GRC recognising her gender as female is a “woman” as defined by the Equality Act. She considered the meaning of the GRA. It says my sex is female. A trans man with a GRC, his sex is male, “for all purposes”. The language is plain.

She then considered the Equality Act. She decided it did not define “woman” as “biological woman”. The word “biological” does not appear in the Act. It did not amend s9 of the GRA which says my sex is female. So, my sex is female. So, para 53, “sex” in the Equality Act includes someone whose sex is recognised by a GRC.

The petition was dismissed.

This may affect the vote later this month on the Scottish gender recognition Bill. A GRC is shown to be important. But I would argue that trans women can still be excluded from women’s services if it is “a proportionate means of achieving a legitimate aim”, because of the Equality Act sch 3 para 28. So the Bill does not, as the fearmongers would have you believe, let men in women’s toilets. It lets women in women’s toilets.

And, once again, the Scottish Public Boards legislation affects the jobs on Scottish Public Boards. A few hundred jobs at most. If there are more men on a board than women, and recruiting a new member a man and woman applicant are equally qualified, the woman should be preferred. The Scottish government wanted that to include all trans women, but the first FWS case decided it did not. Then they wrote guidance saying it included trans women with a GRC, and the second FWS case decided that, yes, it does. But there may never be a Scottish Public Board where a trans woman, with or without a GRC, applies for membership, a man applies at the same time, and they are equally qualified. All that litigation, over years, and it may not affect a single person. The hate campaigners seem to have a bottomless fountain of money for pointless court actions.