EHRC or SexMatters? the line is too blurry to tell
The Equality and Human Rights Commission adopt the belief that a proportionate and legitimate aim for the segregation of a minority can in any way be proportionately defined enough to guide a nation’s service providers, public functions, and associations in achieving that aim, whilst adhering to legal obligations under the European Convention on Human Rights and multiple domestic acts, by laying the foundation of ‘papers please’ segregation on arbitrary notions of conformity, sensitivity, and ‘equal treatment.’
TACC revealed that SexMatters held a private meeting with the EHRC prior to the ruling, guiding them on legally inept ways to roll back trans rights through the back door. In a morally just society, a human rights body would see past this malicious pressure and adhere to its statutory duty; however, this is no morally just society. Pressure is reflected throughout the entire Code of Practice, but the “new content on asking about sex at birth” shows the consequences of a pseudo-intellectual lobbying group responsible for bureaucratic segregation.
Maya Forstater wrote to Falkner on the 22nd of July 2024, going into detail on their proposed intervention in the For Women Scotland Case:
As you said in your letter to the Minister of Women and Equalities last year, “human rights law may require the statutory recognition of biological sex.” If human-rights law requires a coherent scheme for protection against sex discrimination we argue that the deeming provision of s9(1) of the GRAshould be disregarded for the purpose of the Equality Act.
We agree that the law is confusing, and that the courts in the FWS case have so far taken the opposite view. We welcomed your call for the law to be clarified in your letter. The previous government started but did not complete this work before the election, and we understand that this government currently does not intend to continue with it. This places the responsibility for providing clarity back with the EHRC.
“Statutory recognition” of an oppressive and biologically nonsensical reduction of human individuality has no place in human rights law. No matter how “clear” the process may be.
It is not a feasible reality, nor is it by any means “clarity”. It is nothing more than the wishful thinking of a figurehead for a movement that seeks the erasure of trans existence from public life.
The Code of Practice aims to pave the way, but hey, at least they’re doing it “sensitively.”
Thank you for being polite, I guess.
2.2.3 Requests about birth sex are more likely to be justified where it is necessary and proportionate for a service provider, those exercising public functions or an association to know an individual’s birth sex to be able to discharge their legal obligations under the Equality Act 2010 (the Act). Any request that is made should be done in a sensitive way which does not cause discrimination or harassment.
2.2.4 Discrimination or harassment could occur if, for example, individuals are asked about their birth sex in a way which may require them to disclose this information in public, or if the language or manner of a request is rude, combative or offensive.
When a trans person is asked to define their existence by the means of their oppression, the nature of their being is actively harassed in a reminder of the institutional third-sexing that facilitates their segregation. It truly does not matter how this request is made when the reasoning for which it is asked holds an intrinsically discriminatory view of their personhood.
Though an individual may, in their best efforts, ask for birth sex in a manner that is not actively combative, it is passively combative of trans existence, of lived reality, of our core sense of self and any progress made in the expression of such. It is actively combating our place in society.
Herein lies the consequence of the Supreme Court Judiciary’s actions, that not only violated the very tenets of justice, but institutionally defined trans existence in such an intrinsically reductive way as to provide the ammunition for widespread violations of well-established human rights laws and case law which reflect how they relate to the protected characteristic of gender reassignment.
Rights? Don’t know the meaning of the word…
Article 14 prohibits discrimination of Convention rights, when read with Article 8, the right to a private life cannot be infringed based on an individual’s gender identity. To “likely” (very clear, thank you) avoid discrimination against trans individuals, and in what could be seen as an ignorant move of attempted plausible deniability, the EHRC are advising an inconceivably unworkable and unjustifiable process.
2.2.5 Indirect discrimination could occur if a policy on how or when to ask for such information places some protected characteristic groups at a particular disadvantage and is not justified. However, where practical, it is likely to be best to adopt the same approach with everyone, rather than only asking some people for information, because this approach is less likely to be discriminatory against any one group.
The Code of Practice is being sought after with intensity and urgency from businesses in desperate need of genuine guidance in how to maintain inclusive policies, trying to make sense of the ways in which they can avoid financially devastating litigation without taking part in a violation of morality.
Instead, they are being told to extend the immorality of restricting service access behind the demands of medical history to everyone. Again, this is simply not a feasible reality. How can “the same approach” be certain in enough of a degree as to warrant the recommendation of such a practice? How can a service provider ensure that everyone is asked? What bright idea will the EHRC have to ensure the validity of answers?
“Objectively falsely” or “We can always tell”?”
2.2.6 If it is necessary to ask a person’s birth sex, consideration should be given to whether it is reasonable and necessary to ask for evidence of birth sex. In many cases, it will be sufficient to simply ask an individual to confirm their birth sex. A service provider may make a rule that if someone is asked their birth sex and chooses to answer objectively falsely it will be grounds for exclusion from the service.
Before I try to unpack the ludicrous ‘solution’ to this, as they put it, “genuine concern”, we need to address the supposed objectivity. Because after all, what is “clarity” without objectivity?
In this regard, objectivity carries weight that the trans community alone cannot strengthen against, and they surely won’t be alone when the embedding of biological essentialism and gender conformity destroys progress in diminishing the ways those patriarchal mechanisms of oppression manifest.
Objectivity swiftly becomes an arbitrary notion of which expressions are deemed acceptable for someone of your supposed perception, the conformity to whichever criteria the judge of your individuality deems fit. Criteria developed over a decade of relentless anti-trans propaganda reinforcing biological requirements and the expressions granted under birth-written classification.
Call this intuition, if you will, but encouraging this environment on a widespread scale might contradict Article 10’s “Freedom of Expression”.
“Papers, please”
2.2.8 If there is genuine concern about the accuracy of the response to a question about birth sex, then a birth certificate could be requested. For the vast majority of individuals, this will be an accurate statement of their birth sex. However, it should be noted that a birth certificate may not be a definitive indication of birth sex. If a person has a Gender Recognition Certificate (GRC) they may have obtained an amended birth certificate in their acquired gender. In the unlikely event that it is decided that further enquiries are needed, such as confirmation as to whether a person has a GRC, then any additional requests should be made in a proportionate way which is discreet and sensitive.
2.2.9 It is important to be aware of legal provisions protecting privacy in the context of making such enquiries. If, in the course of these enquiries or otherwise, a service provider, those exercising public functions or an association acquires information that someone has a GRC or has applied for a GRC, onward disclosure of either that information or their biological sex without consent may be a criminal offence in some circumstances (read section 22 of the Gender Recognition Act 2004).
Trans segregation requires the reliance on a biologically nonsensical reduction of self, and in a fitting manner, the EHRC are advising service providers to request birth certificates when they can’t figure out the details of someone’s birth based on who they are decades later. But as birth certificates can be amended, the EHRC needed to advise duty-bearers on how to differentiate between which certificates warrant exclusion.
(Just the trans ones)
What if a cis individual is found to have answered “objectively falsely”? What if they somehow manage to show a demanded birth certificate, a document notorious for being readily available, but the objectivity is just so strong that they must have amended it? When they are pressured on a non-existent GRC, what happens? Will they be believed? Or will they be excluded based solely on the conclusions of the accuser?
It is astonishingly irresponsible to leave these questions unanswered in the supposed solution to a nationwide panic about human rights obligations. Leaving it to an undefined “additional requests should be made in a proportionate way which is discrete and sensitive”.
For trans individuals discretion and sensitivity can never be guaranteed, least of all when their legal protections are being disregarded by those meant to enshrine them, under the influence of those who wish them gone. Section 202 of the FWS ruling ensured to reflect a core fundamental to possession of a GRC, “The duty-bearer cannot ask whether it has been obtained”.
Much to the dismay of Falkner and her Cronies, or rather Forstater and her lackeys, the ECHR and ECtHR do exist, Goodwin v UK did happen, and the Gender Recognition Act 2004 is still in force. So instead, they’re either ignorantly acting as though its protections don’t exist, or incompetently guiding service providers to adopt a grotesque misinterpretation that renders the act wholly ineffective. After all, why bother with all the faff in repealing the GRA when you can just fundamentally change how it operates? Despite their best efforts, they can’t do that.
This is both ignorance and incompetence.
Clarity or confusion?
Is this proportionate? Is this clarity?
Or is it placing the responsibility of addressing the reasons as to why a proportionate second-class citizenship cannot be achieved, on whichever service provider or business falls on the sword of whichever human rights violation that comes first?
It is the abhorrent attempt at manufacturing loopholes and stretching exemptions across various domestic and international human rights laws to a dangerously undefined degree.
None of this is proportionate.
None of this is clarity.
None of this is workable.
None of this was mandated by the Supreme Court.
None of this ensures adherence to the ECHR, HRA98, GRA04, or EA10.
All of this sounds like it came from the SexMatters playbook.
(Make of that what you will)