Supreme rulings

UK’s highest court to rule on gender recognition and doctors’ anonymity

Is a person with a full gender recognition certificate recognising the holder’s gender as female a “woman” for the purposes of the Equality Act 2010?

That’s the question five justices of the UK Supreme Court will attempt to answer this morning when they rule on an appeal by a campaign group called For Women Scotland against an interpretation of Scottish legislation, intended to increase the proportion of women on the boards of Scottish public bodies, that has been upheld in the Scottish courts.

Court 1, UK Supreme Court

I published a lengthy preview of the appeal before it was heard last November and quoted extensively from Dr Michael Foran’s Substack Knowing Ius. Foran has now published a new piece setting out what the Supreme Court will decide and, even more importantly, what it will not.

The ruling will have widespread implications, according to campaigners. As the Guardian reports today,

If the court rules in favour of the Scottish government, it may recommend that the Equality Act is clarified to set out the rights of trans women.

If it rules in favour of For Women Scotland, there will be substantial pressure on the UK government to amend the act to exclude trans women from women-only spaces and the Scottish government will need to reverse its policies on public boards.

Today’s Times preview says this:

If the court accepts the definition of a woman can be broadened to include transgender women — born biologically male — who have a full gender recognition certificate that changes their legal sex to female, the implication is that society’s fundamental understanding of sex will also be changed.

Another campaign group involved in the case, Sex Matters, said that this outcome would not mean that trans women with gender recognition certificates would be able demand access to women’s single-sex services as there was still other legislation protecting these areas pertaining to the Equality Act, safeguarding, duty of care and the protection of human rights. But it predicted that it would make it legally complicated to operate “truly single-sex facilities”.

Sex Matters has “developed a scale from 1 to 10 to express how clearly and robustly the judgment as a whole protects sex-based rights”.

Lord Reed of Allermuir, who presided over the hearing, summarised the main issue when I interviewed him last October. As you can hear in this brief extract by clicking the ► symbol below, the Supreme Court president regarded the case as both difficult and important:

Even so, the appeal has taken little more than four months to resolve, suggesting a measure of agreement among the justices. Look out too for any comments they may make about the way the case was argued by counsel at the hearing.

Abbasi and Haastrup

By contrast, the first judgment to be delivered today has taken a year to prepare. There are two appeals raising similar issues arising from different facts. It’s expected that the court will lay down general principles and then apply them to the individual cases — possibly reaching different conclusions on each.

Both cases involve the death of a child in hospital. As the Court of Appeal said two years ago, so-called end-of-life cases — when courts must decide whether it is in the child’s best interests for life-sustaining treatment to be withdrawn — “are apt to generate a great deal of passionate debate which spills over into harassment of those involved in the proceedings, picketing of hospitals and interference with the working of the hospitals”.

The Court of Appeal added:

There are too many who involve themselves in these kinds of debate who lack all sense of proportion and display intolerance of anyone who disagrees with them. Some are not willing to admit that there may be two legitimate points of view. Nonetheless, the circumstances in which it is lawful or ethical to withdraw treatment is the subject of legitimate debate.

So the question for the Supreme Court is whether hospital staff who cared for Zainab Abbasi and Isaiah Haastrup should enjoy lifelong anonymity.

Sitting in the High Court, the president of the family division Sir Andrew McFarlane said they should. The Court of Appeal said they should not.

The Court of Appeal decision was welcomed by the children’s parents. They want to speak publicly about their experiences and identify NHS staff who were involved in caring for their respective children. The two hospitals are seeking to maintain the anonymity of NHS staff involved.

These summaries of the facts are taken from McFarlane’s judgment, delivered in 2021:

Tragically, Zainab Abbasi was born in June 2013 with a rare and profoundly disabling inherited neurodegenerative disease. In addition she contracted swine flu in 2016 which resulted in lung damage.

Both of Zainab’s parents are medically qualified, in particular, her father, Dr Rashid Abbasi, is a consultant respiratory physician working in the NHS. For much of Zainab's life the treatment plan delivered by the Newcastle upon Tyne Hospitals NHS Foundation Trust was controversial as between the treating consultants and the child’s parents. In essence, the treating team recommended only palliative care, whereas the parents favoured more active treatment...

Matters deteriorated to the extent that the hospital sought to prohibit the father from attending the ward and when he did so, the police were called and he was forcibly removed.

In August 2019 the hospital issued proceedings in the family division seeking a declaration that it was in Zainab’s best interest for life-sustaining treatment to be withdrawn… The case was set down for final hearing on 19 September 2019 but, on 16 September, Zainab sadly died.

Dr and Mrs Abbasi remain profoundly critical of the care that their daughter received… They therefore wish to publicise the care that was given to their daughter and, in doing so, use the names of those involved in the provision of her treatment so that the parents, as whistle-blowers, may bring these issues to the more general attention of the public in the hope that an investigation will follow which will result in radical change…

Isaiah Haastrup was born in February 2017 [at King’s College Hospital, London]. During the process of birth, his brain was deprived of oxygen for a very significant period with the result that, by the time he was born, his central nervous system was in a profoundly compromised position and permanently dependent upon a ventilator to sustain life…

In March 2018, in accordance with an order made in the High Court and following refusal of permission to appeal to the Court of Appeal, Isaiah died after he was removed from the ventilator…

In both cases, indefinite injunctions were granted by the High Court. In Zainab’s case, these protect a small group of medical professionals. In Isaiah’s case, the range of medical staff protected is wider.

Continuing the injunctions involved a balancing exercise between two competing rights — article 8 of the human rights convention which protects the privacy of hospital staff and article 10 of the convention which supports the parents’ freedom of expression.

Allowing the parents’ appeal two years ago, the lord chief justice Lord Burnett of Maldon said:

The orders made in these cases provide for the indefinite continuation of injunctions against the world prohibiting publication of the names of a small number of clinicians in the Abbasi case and a wide range of health service staff in the Haastrup case.

The intense focus on the specific rights being claimed delivers the clear conclusion that the article 10 rights of the parents in wishing to “tell their story” outweigh such article 8 rights of clinicians and staff as may still be in play, long after the reporting restriction orders were made in the respective end-of-life proceedings.

The wider systemic concerns which affect the operation of the NHS laid before the court by representative bodies cannot justify the creation of a practice, not anchored to the specific circumstances of the case, of granting indefinite anonymity to those involved in end-of-life proceedings.

Such a step is one that is controversial and intensely political and suitable for parliament rather than the courts.

Burnett, sitting with Lady Justice King and Lady Justice Carr, suspended the court’s ruling while the hospitals appealed to the Supreme Court.

Update 1045: You can watch my immediate reaction here.