michaelpforan.bsky.social
Lecturer in public law at Glasgow University | Interested in equality law + constitutional theory | "Equality Before the Law" Out now | “Sex, Gender Identity and the Law” coming soon.
Substack: https://knowingius.org/
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If Dr Upton holds a GRC that’s not information that’s been shared with the Tribunal.
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That doesn’t mean that it would be appropriate for the court to risk the appearance of prejudgment by referring to Dr Upton as either a man or a woman. The neutral position is to swerve where possible and to allow each party to use the language they consider most appropriate to argue their case.
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Thank you!
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Thanks Scott!
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Section 55(7): A constable may not carry out an intimate search of a person of the opposite sex.
Sex is relevant. Being trans isn’t.
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Section 55(7): A constable may not carry out an intimate search of a person of the opposite sex.
Sex is relevant. Being trans isn’t.
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Section 55(7): A constable may not carry out an intimate search of a person of the opposite sex.
Sex is relevant. Being trans isn’t.
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S55, subsections (4)-(7) of PACE make it clear that intimate searches can be carried out by constables of the same sex as the person being searched should the tests in s55(4) and s55(5) be met.
This account is a troll account and is not officially associated with the Police in any capacity.
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that is true but that is not bad drafting. that is good drafting. It exposes the policy problems. Bad drafting would obscure them.
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And as @aileenmcharg.bsky.social says, you could JR a refusal to lift the order too.
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The order was lawful when it was made and afaik continues to have effect. The Scottish Gov could reintroduce the Bill at any point. Then an attempt to issue a new s35 Order would have no strong legal foundation and would be unlawful.
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I agree. If the GRA does not apply to the Equality Act, the test for a s35 Order simply won’t be met.
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… the common law meaning unequivocally for anyone who does not have a gender recognition certificate. There is then a question about whether a certificate changes one’s sex for anti-discrimination law.
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Well no. Because we have caselaw which has already interpreted these terms. Sex has a statutory definition of whether you’re a man or a woman then man and woman are defined as male or female of any age. Green v SoS for Justice & For Women Scotland affirm that male and female take on …
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Yes but that’s just explaining *why* you would regulate the act of torturing not *whether* you are regulating the act qua act or the act only if it produces X consequences. The former is focused on the act itself the latter on the consequences of the act.
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The fact that a word has become contested within social or political discourse does not mean that the ordinary (legal) meaning of that word in its legislative context has become contested.
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The task of a judge interpreting statute is by default to find the ordinary meaning of the words in their legal context. That’s not an empirical task involving surveys of the general population. It’s a legal enterprise not an empirical one.
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If for example we had a stable doctrine that in English law the point of death is fixed at cardiovascular death rather than brain death, a reference to the death of a person in a statute would track that even if ordinary usage might vary within the community.
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The task of statutory interpretation isn’t primarily a linguistic one. It’s a legal one. References to ordinary meaning are to ordinary meaning of the words in their correct legal context. That legal context includes findings of fact in caselaw that conclude that sex is binary and immutable.
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For example, we prohibit torture regardless of whether the act of torture produces good or bad consequence overall. Any good consequences can’t override the fact that the act of torture is itself what is prohibited. It’s deontic in nature.
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The effect on another can be a part of the act itself. Killing is an act that involves an effect on another and the act of killing is itself what is regulated regardless of what consequences it produces. I’d say the default is that we don’t regulate purely based on consequences.
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I think we can distinguish between acts which are regulated in themselves and acts that are regulated only when they produce consequences or are sufficiently likely to do so. We don’t need a general theory of regulating action; we can have a different theory of each of these categories for example
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Content*
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Yes but there you’re regulating based on the causal relationship with killing not the context of the opinion expressed. I’m not saying you can’t or shouldn’t regulate based on opinion/expression just that it’s perfectly cogent to have that as a line.
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So in my view this isn’t an issue of a general theory of action/speech but of more narrow freedom of expression. It’s entirely plausible to say that law shouldn’t regulate expression of opinion qua opinion. We could obviously also regulate it but it’s possible to delineate expression imo
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We’re not referring to speech acts here beyond the act of expressing an opinion I’m assuming? I think you can make general statements about whether law should regulate that as distinct from other kinds of speech.
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I’ve always understood freedom of speech/expression to be narrowly focused on the expression of opinions and on content restriction on speech/expression based on whether the opinion is objectionable, seditious, blasphemous, offensive etc. that’s more narrow that a theory of all speech surely?
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By all means you can suggest that if you put evidence before the court that is different from what was presented in Corbett; that showed that medical intervention to change secondary sex characteristics in fact does change sex, you’d might convince it. But right now the position is of sex realism
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No you’re missing my point: the ordinary meaning of the word is not tied to a question of how the word is used but what the word means. There have been findings affirmed in the Supreme Court that sex is binary and immutable except where the GRA is involved.