Sex, Gender and the Trans Debate

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By Prof Joanne Conaghan (University of Bristol Law School)

The recent debate on gender recognition reform, as played out in the press and on social media, has been painful to behold. With passions running high, much of the discourse has been marked by a lack of regard for the viewpoints of others, on occasion spiralling into professional and even personal abuse online. That the pursuit of equality should unleash such unkind sensibilities is troubling, particularly in a feminist context in which values such as inclusion, empathy, and respect for different standpoints have generally commanded wide respect.

What lies behind the apparent deadlock in debate between transgender activists and ‘gender critical’ feminists? On the one hand, there is the perfectly proper concern of trans people to have access to a legal process of gender recognition which they do not experience as invasive, cumbersome, and pathologizing. On the other, there are misgivings expressed by some in the feminist community that a legal regime of gender recognition, understood as ‘self-declaration’ and operating in various forms in Argentina, Belgium, Brazil, Chile, Columbia, Denmark, Ireland, Malta and Norway, will weaken the hard-won gains of decades of feminist activism particularly with regard to securing women’s access to safe sex-segregated spaces such as rape crisis centres and women’s refuges. The fact that existing equality legislation already provides a level of protection allowing same-sex service providers to deny access to transgender individuals where they can show this is a proportionate means of achieving a legitimate aim (for example, a counselling service might reasonably be concerned that sexually abused women will be less likely to attend group counselling if  ‘male-bodied’ trans women are also in attendance)[1] does not seem to have allayed these concerns, though surely they should, particularly as the Government has made clear that they have no plans to change equality law. (more…)

A call for the revocation of Article 50

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By Prof Phil Syrpis (University of Bristol Law School)

Photo from Flickr

Whisper it gently, but a solution to the Brexit riddle seems to be coming into view. Westminster has yet to see it, but it will not be long now (famous last words…) before the reality, finally, becomes impossible to avoid. March 2019 will be upon us very soon. Unless *something* is agreed the UK will leave the EU on 29 March with no deal.

Developments in the EU

While the attention of the nation is focused on Westminster, and in particular on the travails of Prime Minister Theresa May – who on 12 December survived a no confidence from her own MPs by an uncomfortable margin of 200 to 117 – the most important developments have come from the European Union; the ruling of the European Court of Justice on the revocability of Article 50, and the EU’s ever clearer political statements that it will not countenance renegotiation.

First, on Monday, came the judgment of the CJEU in the Wightman case. The CJEU ruled on the unilateral revocability of Article 50. In a judgment which emphasised the sovereignty of the withdrawing Member State, and its ability to decide whether its destiny lies within or outside the EU, the Court held that unilateral revocation is possible ‘in an unconditional and unequivocal manner, by a notice addressed to the European Council in writing, after the Member State concerned has taken the revocation decision in accordance with its constitutional requirements’. It confirmed that ‘the purpose of that revocation is to confirm the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State’. For fuller analysis of the judgment, see here, and, with added Taylor Swift, here. (more…)

Transgender and Intersex Rights in the EU and EFTA

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By Dr Peter Dunne, Lecturer in Law (University of Bristol Law School) and Dr Marjolein van den Brink, Assistant Professor (University of Utrecht).

*This blog post reflects the views of the authors alone. The blog has not been approved by, and should not be understood as the opinion of, the European Commission or European Network of Legal Experts in Gender Equality and Non-Discrimination*

On 20 November 2018, to mark the Transgender Day of Remembrance, the European Commission (DG Justice and Consumers) published a new survey on transgender (trans) and intersex equality rights. The report – entitled Trans and intersex equality rights in Europe – a comparative analysis (‘the Report’) – was co-authored by Peter Dunne (Bristol Law School) and Marjolein van den Brink (University of Utrecht). It considers the existence (or lack thereof) of gender recognition and non-discrimination guarantees for trans and intersex populations in 28 European Union and three European Free Trade Association countries (EFTA).

At a moment when gender rights are the subject of intense political and media debate in the United Kingdom, the Report is a timely reminder of the real, substantive inequalities which transgender and intersex communities experience on a daily basis. While the Report evidences some welcome progress in the spheres of gender identity, gender expression and sex characteristics, it reinforces existing research (e.g. here, here) showing that – both de jure and de facto – trans and intersex individuals experience less secure protection than cisgender peers and persons who do not experience intersex variance. (more…)

Postscript: Addressing Intersectional Anxiety

Posted on by lee.mcconnell

By Dr Shreya Atrey, Lecturer in Law (University of Bristol Law School)

Photo: Keith Rowley (Flickr)

I recently published an article in the Human Rights Quarterly titled ‘Women’s Human Rights: From Progress to Transformation, An Intersectional Response to Martha Nussbaum.’ As the title suggests the article is an extended rumination over Martha Nussbaum’s earlier article in the same journal titled ‘Women’s Progress and Women’s Human Rights.’ My article examines the account of women’s progress that Nussbaum presented. In particular, it asks the ‘intersectional question’ about women’s progress made under the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The account of progress appears wanting when this question is asked; and I try to spell out the reasons for why post-colonial, Dalit and so-called ‘third world’ feminisms fall by the wayside of women’s progress when progress is examined closely. I argue that progress is transformative only when it is inclusive, i.e. intersectional in that it sees women not only as disadvantaged by their sex or gender alone but also on the basis of their race, colour, religion, caste, sexual orientation, age, disability, etc. Readers may see the article for more on this, especially pages 877-884 for a Dalit feminist critique.

Here, I want to pre-empt two kinds of readings which are given to intersectional scholarship like this one. I am not saying that either Nussbaum’s or my own article opens up intersectional scholarship to these readings. But that often, this kind of work is read in a particular light which casts a shadow of anxiety over intersectionality. I want to air and address two ways in which it manifests itself and show that there are ways of overcoming it and finding such scholarship worthwhile. (more…)

Why the Draft Agreement on the Withdrawal of the UK from the EU should satisfy neither Leavers nor Remainers

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By Dr Clair Gammage and Prof Phil Syrpis (University of Bristol Law School)

Introduction

The 585-page Draft Agreement on the Withdrawal of the UK from the EU (“the Withdrawal Agreement”), agreed on 14 November, paves the way for the UK’s departure from the EU on 20 March 2019. The Withdrawal Agreement and the associated Political Declaration on the Future UK-EU Relationship, agreed earlier today, represent the culmination of the Article 50 negotiations between the UK and the EU. The Withdrawal Agreement includes provisions on citizens’ rights (Part Two), provisions governing separation (Part Three), provisions on the transition or implementation period (Part Four), financial provisions (i.e. the divorce bill) (Part Five), and institutional provisions, including a dispute settlement system under a newly-created Joint Committee (Part Six); together with Protocols on Ireland, Cyprus and Gibraltar. For a comprehensive analysis of the Agreement as a whole, see Steve Peers’ analysis, here.

Our intention here is not to engage with the unfolding political drama, but rather to analyse some of the key legal provisions of the Withdrawal Agreement, which explain the way in which the withdrawal process will operate. We begin with a couple of caveats. First, the Withdrawal Agreement is a long document, and we have had only a week to read and think about it. It is not easy to work out how the various parts of the Agreement and the Political Declaration are intended to fit together. Second, this post only purports to provide a broad-brush legal analysis of the Withdrawal Agreement; there are deeper complexities lurking within many of its provisions. We have chosen to focus on those areas in which we have the greatest expertise. Our hope is that this post will provoke a reaction among those keen to participate in both legal, and more political, discussion of the Withdrawal Agreement, and that it will help to generate greater understanding of the proposed terms of the UK’s exit from the EU.

On the basis of our analysis of the deal, we conclude that it should be rejected. It is a better outcome than ‘no deal’. But, it is significantly worse than the status quo. There are significant reasons why not only Brexiters but also remainers should be concerned. (more…)

The all-women jury in R. v. Sutton (1968): ‘of no more than minor interest’?

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By Prof Gwen Seabourne, Professor of Legal History (University of Bristol Law School)

In a manslaughter case held in Swansea in 1968,[i] an unusual order was made. Thesiger J. decided that it should be heard by an all-female jury. He made the order under a discretion granted to him by the Sex Disqualification (Removal) Act 1919, the first, and apparently the only time that such an order was made in Wales or England.

The possibility of ordering a single sex jury has long since been removed, but R. v. Sutton was and is important as an event, and as a working-out of the implications of the early, limited, moves towards women’s participation in public life which came with the Representation of the People Act 1918 and Sex Disqualification (Removal) Act 1919. The fiftieth anniversary of the case (and the approaching centenary of the 1919 Act) seems an appropriate moment to sketch some of its claims on our attention. (more…)

How Might Human Rights Contribute to Countering Extremism in the UK?

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By Prof Steven Greer, Professor of Human Rights (University of Bristol Law School )

Photo credit: Wiredforlogo

Many, including the government, are convinced that ‘extremism’ is implicated in the current terrorist threat and in some of the challenges which arise in the promotion of integration and the maintenance of social cohesion in a society as diverse as the UK. It is, of course, undeniable that terrorism involves ‘violent extremism’. But it is less clear that there is a problem with ‘non-violent extremism’, or at least that it is of such significance that the state and society should be mobilizing to address it. Yet, it is also difficult to deny that the profile of ideas and behaviour hostile to humane values, tolerance and mutual respect has increased in recent years, particularly as a result of the internet and social media. It is against these backgrounds that an independent Commission for Countering Extremism was established by the government in March 2018. At the core of its mission lie three questions: what precisely is ‘extremism’? What kind of threats and risks does it pose? And what, if anything, should state and society do about it? This brief contribution considers the role that human rights might play in finding some answers.
(more…)

When Christmas drinks go wrong (Round Two) – Vicarious liability in the Court of Appeal … again

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By Prof Paula Giliker, Professor of Comparative Law (University of Bristol Law School)

In January 2017, I published a blog on the decision of Judge Cotter QC in December 2016 in Bellman v Northampton Recruitment Ltd [2016] EWHC 3104 (QB).  This was a High Court decision determining whether an employer would be vicariously liable when a company’s managing director punched a fellow employee during an informal drinking session after the company’s annual Christmas party.   Tort lawyers will know that vicarious liability is a rule of strict liability, by which a person (usually an employer) is held strictly liable for the torts of his employees provided that they take place “in the course of employment”.  Following the House of Lords’ decision in Lister v Hesley Hall [2001] UKHL 22, a tort is now deemed to be in the course of employment if it is so closely connected with the employment that it would be fair and just to hold the employer vicariously liable.  In Bellman, the court was asked to apply the “close connection” test in the light of the Lord Toulson’s restatement of the test in Mohamud v Wm Morrison Supermarkets Plc [2016] UKSC 11 in March 2016.  In that case, Lord Toulson had stated that, in applying the test for “close connection”, the court has to consider two matters:

  • What are the functions or “field of activities” entrusted by the employer to the employee, or, in everyday language, what was the nature of his job?
  • Is there a sufficient connection between the position in which the employee was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice?

Judge Cotter QC in 2016 ruled that the violent assault had not been closely connected to the managing director’s duties for the company. On 11 October 2018, a unanimous Court of Appeal allowed Bellman’s appeal and ruled in favour of vicarious liability: [2018] EWCA Civ 2214.  This blog will consider the implications of this ruling. (more…)

Having your cake and eating it? Reflections on the UK Supreme Court’s decision in the ‘Belfast gay marriage cake’ case

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By Prof Steven Greer, Professor of Human Rights (University of Bristol Law School)

Photo: QueerSpace

On 10 October 2018 five judges on a panel of the UK Supreme Court unanimously held that the owners of Ashers bakery in Belfast, Mr and Mrs McArthur, had not violated the rights of LGBT activist, Mr Gareth Lee, by refusing to supply a cake decorated with Sesame Street characters Bert and Ernie, the logo of the campaign group ‘QueerSpace’, and the slogan ‘Support Gay Marriage’. The bakery had initially accepted Mr Lee’s order but declined to complete it and returned his money on the grounds that the proposed message conflicted with the deeply held religious convictions of the proprietors, that the only form of marriage consistent with the Bible and acceptable to God is that between a man and a woman. Supported by the Equality Commission for Northern Ireland, Mr Lee brought a claim against the bakery and the McArthurs (‘the appellants’) for direct and indirect discrimination on grounds of sexual orientation and/or on grounds of religious belief and/or political opinion contrary to relevant legislation. In March 2015 a county court judge held that Mr Lee had been the victim of direct discrimination on grounds of sexual orientation, religious opinion and political belief. The Northern Ireland Court of Appeal subsequently upheld the sexual orientation complaint and decided there was no need to settle the other issues. Having earlier been joined as party to the appellate proceedings, on 28 October 2016, the Attorney General for Northern Ireland referred the matter to the UK Supreme Court where it was heard together with the appeal by the McArthurs and the bakery (more…)

Why we are teaching Law and Race at the University of Bristol

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By Dr Foluke Adebisi, Teaching Fellow (University of Bristol Law School).

‘Education does not change the world. Education changes people. People change the world.’ — Paulo Freire, Brazilian Philosopher and Educator

In the 2018/2019 academic year, Yvette Russell and I will be (for the first time) teaching a unit called Law and Race. It is a very exciting prospect, not least because there are very few law schools in the UK who teach race in any direct or focused way, and much fewer have a unit dedicated to race. This has been an intellectually stimulating enterprise for both of us, and in this article, I would like to explain why we have embarked on it and what we hope to achieve.

The history of the world can be perceived as the history of continuing inequalities. Oftentimes, race functions as the motivation for and justification of oppressive social, cultural, economic and political structures. This is evidenced by colonisation, slavery, and persistent global racial inequalities that cut across gender and class. Law has often been used to create, justify or maintain these demarcations. Notwithstanding this, legal study often ignores the correlation between race and law, as well as the paradox inherent in the use of law to both oppress and liberate. In our unit we aim to examine legal history and the current state of the law in a critical exploration of how legal evolution has impacted upon and caused racial disparities, and how these factors are continuously consciously and unconsciously embedded and reproduced within the operation of law. (more…)