GRA Repeal - Not Such a Pipe Dream
By Danny Nicol
Dr Michael Foran has expressed the view that
To say the least the fact that repeal of the Gender Recognition Act would put the U.K. in breach of international human rights law is enough to ensure that it would never succeed in Parliament. Repealing the GRA is a pipe dream. (Twitter, 28th July 2023).
It is good that Dr Foran has spelt out his objection. Doing so facilitates debate, and it is valuable for those of us on the ‘Biological Realist’ side of the gender conflict to debate aims and strategy. It would also be good if some of our prominent campaigning organisations, such as Sex Matters and the LGB Alliance, could emulate Dr Foran’s candour and tell us whether they’ll campaign for the repeal of the GRA and of the protected characteristic of gender reassignment in the Equality Act, and if not, why not.
It’s true enough that in Goodwin v United Kingdom (2002) the European Court of Human Rights held that:
[93] …. Since there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, [the Court] reaches the conclusion that the fair balance that is inherent in the Convention now tilts decisively in favour of the applicant. There has, accordingly, been a failure to respect her right to private life in breach of Article 8 of the Convention [the right to respect for private and family life].
The GRA created the system of ‘legal recognition of gender reassignment’ desired by the Court. Can we get rid of it? I would argue, contra Foran, that we can. I would argue that repeal cannot be dismissed as a ‘pipe dream’ for a combination of legal and political reasons.
1. The British constitution is based on the sovereignty of Parliament, not on the supremacy of international human rights law
First things first. As a matter of purely domestic law there is no necessity for the UK Parliament to comply with the judgments of the European Court of Human Rights. The British constitution is based on the sovereignty of the UK Parliament. That means that Parliament has the right to make or unmake any law. So just it made the GRA, it could also ‘unmake’ the GRA, in other words, repeal it.
Furthermore, under the British constitution, international law does not enter the domestic legal system automatically. It needs to be introduced into our national law. This often happens by Parliament passing a statute. Thus Parliament passed the Human Rights Act 1998 so that UK courts could to some extent give effect to ECHR rights (though it did so after decades of our being in the European Convention on Human Rights).
The Human Rights Act does not authorise the UK courts to disregard Acts of Parliament. Indeed, the Act tells the UK courts to enforce Acts of Parliament even if they are deemed incompatible with the rights in the Convention. If Parliament therefore were to pass an Act repealing the GRA, our courts would have to enforce that repealing statute as a matter of domestic law.
2. The GRA seriously violates fundamental human rights, as does the Goodwin judgment which inspired its enactment
The GRA creates a system of sex falsification. Men can obtain gender recognition certificates to say they are women; women can obtain certificates to say they are men. If a certificate is granted, and if the acquired gender is the female gender, then the person’s legal sex for almost all purposes becomes that of a woman.
The immense safeguarding dangers of this sex falsification for women and girls are well-documented. The GRA therefore exposes girls and women to the very kind of human rights breaches which the ECHR is supposed to guard against. For example under Article 3 ECHR, no-one shall be subjected to torture or to inhuman and degrading treatment. Yet this is precisely the treatment to which a woman or girl may be subjected if a man enters a woman-only single sex space having felt entitled and emboldened to do so as a ‘legal woman’.
The Goodwin/GRA saga reminds us that the truth about rights is not self-evident. Merely because certain people are international judges does not make them any more competent than the rest of us to divine the authentic meaning of rights. That the Goodwin judgment and the GRA clearly destroy the fundamental human rights of women and girls serves to confirm this. It calls into question to utility of remaining in the ECHR.
Nonetheless, for the time being, we are an ECHR Contracting State, so let us now consider the nature of the Court and the British Parliament’s relationship with that Court.
3. The Foran ‘pipe dream’ argument disregards the nature of the European Court of Human Rights
When the European Court of Human Rights interprets the ECHR it often says that the Convention is a ‘living instrument’. Although the words of the Convention do not change, the Court believes that it can ‘update’ the meaning of those words in line with changing social conditions through its interpretative efforts. Another consequence is that the Court does not feel bound by its own previous decisions. It can effectively overrule them.
It is highly controversial whether this 'living instrument' claim is legitimate. It means that the Court is making itself more powerful. It is doing so by going beyond the intentions of the sovereign nation states which negotiated and signed the ECHR. Nonetheless the Court frequently makes play of the idea that the ECHR is a living instrument, including in Goodwin v UK.
What Dr Foran ignores is that the 'living instrument' idea cuts both ways: the Court could use its ‘dynamic’ mode of interpretation to discard the holding in Goodwin that the UK must have a system of recognition of transgender status. It could do so on the basis that it is now increasingly clear that adequate protection of the rights of women and girls requires it to change its case law.
Look again at the seminal paragraph 93 of the judgment cited above. The Court said there was ‘no significant factors of public interest to weigh against the interest of this individual applicant’. Essentially, the UK Government failed to present any weighty arguments as to why there should not be a system for obtaining legal recognition of one’s ‘gender reassignment’.
How different things would be today! If the case were heard now, there would be powerful arguments and plentiful evidence to show that a system of sex falsification invariably leads to human rights violations against women and girls. If the Court is genuinely to treat the ECHR as a living instrument, it would also need to take into account the growing resistance to gender ideology in the ECHR states, including in those countries which have legislated to define gender on the basis of ‘sex at birth’. In this regard it is naïve to suppose that the Court pays no heed to the need to keep Contracting States within the ECHR system at a time when leaving it is becoming increasingly attractive.
4. The Foran ‘pipe dream’ argument disregards the character of the UK Parliament
Dr Foran’s argument also rests on the notion that the UK Parliament slavishly carries out the instructions of the European Court of Human Rights. In fact the UK Parliament is steeped in the ethos of parliamentary sovereignty. To be sure, it is true that under Article 46 ECHR the Contracting Parties promise to comply with the final judgments of the Court – albeit only in cases to which they are parties. But this ignores the character of the UK Parliament. They are not always supine cap-doffers. Indeed British MPs started asserting themselves against the primacy of the European Court of Human Rights long before Brexit.
In 2011 the UK Parliament got into a conflict with the Court of Human Rights over the issue of voting rights of prisoners. After an adverse judgment from the Court about the state of British law, the House of Commons overwhelmingly carried a backbench motion that ‘legislative decisions should be taken by democratically-elected lawmakers’ and that it supported ‘the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand’.
The vote was passed by 234 votes to 22. It is striking that only 22 MPs were seemingly prepared to register their support for the principle of automatic compliance with the European Court of Human Rights. The speeches show that most MPs thought that the Court was acting beyond its powers.
Dr Foran’s ‘pipe dream’ thesis would only be convincing if MPs displayed a forelock-tugging deference to the decisions of the European Court of Human Rights. The evidence of the prisoner-voting episode is exactly the opposite.
That was back in 2011. Now we are no longer in the heyday of legal globalisation. Britain has left the European Union. Disagreement between many MPs and the Court over aspects of immigration policy has become fierce. Perhaps most importantly the legitimacy of the entire ECHR system has been undermined by the authoritarian regimes in Russia and Turkey; the purpose of the ECHR was precisely to stop authoritarian regimes from taking hold. The growing backlash against globalisation makes it likely that the Court now holds less sway over MPs than it did when they refused to kowtow over prisoner voting.
Finally let us consider what’s the worse that can happen if the UK Parliament were indeed to repeal the GRA? No doubt a ‘transgender’ litigant would try to bring an action before the European Court of Human Rights to argue that repeal breaches his rights. To bring a case before the Court of Human Rights, such a litigant needs to exhaust his domestic remedies. The Convention requires this. That means he must bring his case (perhaps by way of judicial review) before the High Court, then the Court of Appeal and then the United Kingdom Supreme Court. Only if the litigant believes that the Supreme Court has failed to accord him his ECHR rights may he make a complaint against the UK before the European Court of Human Rights.
We are therefore talking about years of litigation, during which time gender ideology may well become entirely discredited. Certainly the evidence of the malign effect of systems of sex falsification will, alas, pile up even more. We cannot be sure so far into the future how the Court will respond to such evidence, nor how Parliament will respond to the Court.
In conclusion, then, parliamentary sovereignty means that there is no domestic legal imperative for British MPs to tug forelock at the judgment in Goodwin, still less at subsequent cases on gender recognition to which the UK was not a party. MPs indeed should support neither the Goodwin judgment nor the retention of the GRA, since both destroy the fundamental human rights of women and girls. There can be no certainty that the European Court of Human Rights, confronted in future with a conflict with the House of Commons, would stick to its guns on gender recognition in the face of compelling evidence of the appalling effect on women and girls. Conversely we certainly cannot rule out that British MPs would face down the European Court of Human Rights if the political will is strong enough.
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