I have to confess I couldn’t follow the live tweeting and I didn’t understand what was going on. I thought it was important that I did. So I read the skeleton arguments and I think I now understand a little better. I am sharing this in case you will benefit from my thought processes. I think it’s really important that we understand as best we can what is happening here.
Thank you Sarah, and person who attended and provided the extra commentary.
It does sound rather as if everyone involved in the hearing was rather muddled. Also, I agree, that the muddle might only be avoided in future if the starting point is to define "sex" and "gender recognition" as distinct legal concepts that do not overlap.
Some other thoughts, about the failure of the EA to explicitly recognise and take account of the long-term impact on services of giving even equal weight to PCs that are so very different in character.
1. Services
The EHRC COP focuses too much on snapshots in time, on specific instances of possible inclusion or exclusion of an individual, too little on the need for long-term preservation of "protected services" for the PC of sex.
2. The EA and EHRC fail to take account of important differences between PCs
"Sex" (biological sex):
is present at birth and is immutable. (Even before birth but that is not relevant to the EA.)
Sex can be objectively verified and it is not possible to "identify out of" one's biological sex.
"Gender recognition":
is, in practical terms, more like the PC of "Disability" than "Sex". That is, it is not necessarily present at birth; whenever the "onset", it does not necessarily persist throughout life.
Like a "hidden disability", it would need to be disclosed in order to take advantage of the the provisions in the EA.
However, with the PC of Disability there is an expectation of objective verification of the existence of the characteristic in order to claim protection under the EA.
The problem with the EA definition of GR is that the minimum requirement for evidencing the PC is self-declaration of an intention to obtain a GRC at some unspecified time in the future.
If the PC of Disability was defined in the same way as GR: a person could claim protection under the PC of Disability by disclosing a medical condition with no current impact but a prognosis that at some unspecified point in the future it might have an impact.
"Pregnancy":
is at the other extreme to "sex" in that the "onset" is always and only in adult life (in terms of physical and sexual maturity) and is always time-limited. (Obviously, it is different to both "sex" and "gender recognition" in that only females are affected.)
It is also at the other extreme to GR in that: objective tests exist and the expected duration of the PC can be predicted with a high degree of accuracy.
If the PC of Pregnancy was defined in the same way as GR: a woman could claim protection under the PC of Pregnancy from the moment she declared that at some unspecified point in the future she intended to get pregnant.
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The last two sentences of the extra commentary are so obvious that it beggars belief that they seem not to have been considered:
"If a measure has to be reasonable proportionate, of course you can exclude one person - who is different - to protect the majority. Particularly as there is a solution to provide specialist services for people with GR."
Thank you Sarah, and person who attended and provided the extra commentary.
It does sound rather as if everyone involved in the hearing was rather muddled. Also, I agree, that the muddle might only be avoided in future if the starting point is to define "sex" and "gender recognition" as distinct legal concepts that do not overlap.
Some other thoughts, about the failure of the EA to explicitly recognise and take account of the long-term impact on services of giving even equal weight to PCs that are so very different in character.
1. Services
The EHRC COP focuses too much on snapshots in time, on specific instances of possible inclusion or exclusion of an individual, too little on the need for long-term preservation of "protected services" for the PC of sex.
2. The EA and EHRC fail to take account of important differences between PCs
"Sex" (biological sex):
is present at birth and is immutable. (Even before birth but that is not relevant to the EA.)
Sex can be objectively verified and it is not possible to "identify out of" one's biological sex.
"Gender recognition":
is, in practical terms, more like the PC of "Disability" than "Sex". That is, it is not necessarily present at birth; whenever the "onset", it does not necessarily persist throughout life.
Like a "hidden disability", it would need to be disclosed in order to take advantage of the the provisions in the EA.
However, with the PC of Disability there is an expectation of objective verification of the existence of the characteristic in order to claim protection under the EA.
The problem with the EA definition of GR is that the minimum requirement for evidencing the PC is self-declaration of an intention to obtain a GRC at some unspecified time in the future.
If the PC of Disability was defined in the same way as GR: a person could claim protection under the PC of Disability by disclosing a medical condition with no current impact but a prognosis that at some unspecified point in the future it might have an impact.
"Pregnancy":
is at the other extreme to "sex" in that the "onset" is always and only in adult life (in terms of physical and sexual maturity) and is always time-limited. (Obviously, it is different to both "sex" and "gender recognition" in that only females are affected.)
It is also at the other extreme to GR in that: objective tests exist and the expected duration of the PC can be predicted with a high degree of accuracy.
If the PC of Pregnancy was defined in the same way as GR: a woman could claim protection under the PC of Pregnancy from the moment she declared that at some unspecified point in the future she intended to get pregnant.
===========
The last two sentences of the extra commentary are so obvious that it beggars belief that they seem not to have been considered:
"If a measure has to be reasonable proportionate, of course you can exclude one person - who is different - to protect the majority. Particularly as there is a solution to provide specialist services for people with GR."
I am confused as to who the 'he' is at the start of the additional commentary. Can you clarify please?