Legal Feminist asks some probing questions. Three, to be precise.

1. Does the government really accept the Supreme Court’s judgment?
2. If so, why are its lawyers in court currently putting forward arguments which run contrary to what that judgment says and which were argued before and rejected by the Supreme Court.
3. Who is responsible for giving the instructions to the government’s lawyers?

On the first question, LF notes that the government has said it accepts the judgment, but it has acted as if the other thing. The not so much accepting thing.

The judgment itself was clear: it was accepted by all parties before the judgment that anyone without a Gender Recognition Certificate remained their birth sex. The judgment determined that a Gender Recognition Act certificate did not change legal sex for the purposes of the Equality Act and, therefore, all relevant provisions of that Act which related to single sex exceptions (whether in relation to spaces, services, associations or sport) needed to be based on – and only on – biological sex.

Let me just pause for a moment to ponder the absurdity of the fact that anyone has ever thought a certificate could change what sex people are. You might as well say a postage stamp can change what species people are. You might as well say anything. A greeting card can change how old you are. A sales receipt from Waitrose can change how many legs you have. A bus pass can change where you were born.

The second question arises from the government’s arguments in the judicial review currently being brought by the Good Law Project (“GLP”) against the EHRC’s interim update. The government is named as an interested party. This is not unusual. It is there to provide clarification on the government’s position and to assist the court.

But that is not what leading counsel for the government is doing. The KC is putting forward arguments which were put before the Supreme Court and rejected. The judge has said in terms to the government’s counsel that the argument is “trying to rewrite FWS”. Government lawyers are putting forward arguments which either show a misunderstanding of the judgment or an attempt to relitigate it or interpret it incorrectly or to water it down or undermine it. Strong words. But why, for instance, is counsel stating that transwomen i.e. men who identify as women should be allowed into a female only space, such as a public toilet, on a case by case basis, when the Supreme Court has already ruled that this is not in line with the law and unworkable. These are not the arguments of a neutral party. They are arguments which the GLP could [be] and are making.

Siiiiiiiiiigh. Fuck off with that “case by case” business. NO. What are women supposed to do when a case by case basis man bounces into their public toilet? Interview him? Ask to see his papers? What? And who will help them when the man in question goes ballistic?

Lawyers in court act on the client’s instructions. Which part of government is instructing the lawyers to make these arguments? And why? Formally, it is the Minister for Women and Equalities (Ms Bridget Phillipson) who is responsible. She will surely have taken advice from the government’s lawyers, ultimately answerable to the Treasury Solicitor and the Attorney-General. That legal advice is, of course, privileged. But the actual arguments in court are open. They show a government arguing in contradiction to what the Supreme Court judgment says and doing so in a lower court which is bound to follow the Supreme Court’s judgment.

Why? Is this deliberate? Is this a misunderstanding? Is this an attempt to appease those Labour backbenchers who seem unwilling to accept the judgment and who want to water it down in some way?

And why are they getting away with it???