UK Supreme Court: Women Are Born That Way

In a landmark ruling, the Supreme Court of the United Kingdom yesterday ruled unanimously that biological sex is the determining principle in the Equality Act 2010.  Lord Hodge, Deputy President of the court, read out the ruling to a packed chamber:

The Court made a very thorough review of all the applicable laws in its carefully reasoned 88-page ruling, which you can read here if you have a couple of hours to spare.  Or you can read a much shorter W\ikipedia summary here.  I am no lawyer, but despite some banner headlines in the world's press, it seems to me that the Court has confined its ruling to the interpretation of the law as it stands right now, and has not set a sweeping change in stone. 

But what do I know.  This ruling will have far-reaching effects in British law.  However, my fellow Americans should understand that Britain has no written constitution as we do; instead, the fundamental legal principle over there is parliamentary supremacy - meaning, Parliament can pass any law it wants to, on any subject, at any time.  However, in actual practice, British lawmakers are effectively restrained by custom, tradition, political opposition, and public opinion.  

(The King is technically part of Parliament, but he has no say-so.  Contrary to what you may think, he does not run the government; the government runs him. He pretty much has to do whatever the Prime Mininster "advises.")

The Guardian provides an explainer of today's ruling here.

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Prop 8: The Lady or the Tiger

The impending legal dilemma and furor over Prop 8 reminds me of this classic short story.

Tomorrow you can expect to hear all kinds of hooting and hollering regarding the California Supreme Court's hearing on whether Proposition 8 is valid - or not. Lots of high-powered legal arguments will be offered on both sides, and even though the Court may not issue a final ruling for another 90 days, observers will be quick to take the measure of the court's attitude by what is said or not said from the bench tomorrow.

It's a very sticky question. We know, of course, which way we would like the justices to rule. But although I'm not a lawyer, I realize this question is stirring up some very deep constitutional waters. It's not a cut and dried thing; the justices are walking through a minefield.

As I see it, the question is, which is the trump card: democracy (via a free election, such as was done in November), or the laws (which include the court's previous findings on the constitutional obligation to extend marriage rights to all). The vote of the people, or the rule of law?

Before you blurt out an answer, stop a minute and transpose the situation into another framework. Let's say the Supreme Court ruled that alcohol was a dangerous substance and outlawed its sale or consumption in the state; or that the right to bear arms must be extended to allow everyone to carry a handgun openly in all public places; or that children cannot be compelled to go to school against their will, at any age. Or any other issue, plausible or not, that you can think of.

Then suppose the voters pass an amendment overruling the Supreme Court's logic.

Who rules? The people? Or the courts? What are the limits of democracy, of rule by majority vote? Who gets to say where the limit is, and why? It's not enough to say, Well I don't like it. You have to justify by compelling reason why you override either the law or the vote. It's a very complex question, and I don't pretend to have the answer.

But what I do know is the the justices will be excoriated without mercy no matter which way they decide. God help them, I sure wouldn't want to be in their shoes right now.

FYI, from Wikipedia:

Prop. 8 from the CNN exit poll. [November 4, 2008]

For those who voted Yes on Proposition 8 [against same-sex marriage]:

84% of weekly churchgoers – (32% of those polled);[note 1]
82% of Republicans – (29% of those polled);[note 2][note 3]
81% of white evangelicals – (17% of those polled);
70% of African Americans – (10% of those polled);[note 4][note 5]
68% of voters married with children (31% of those polled);
65% of all Protestants - (43% of those polled);
65% of white Protestants – (29% of those polled);
64% of voters with children in household – (40% of those polled);
64% of Catholics – (30% of electorate);
61% of age 65 and over – (15% of those polled);
60% of married people – (62% of those polled);[note 6]
59% of suburban dwellers – (51% of those polled);
58% of non-college graduates – (50% of those polled);
56% of union households - (25% of those polled);
53% of Latinos – (18% of those polled);
51% of white men – (31% of those polled).

For those who voted No on Proposition 8 [in favor of same-sex marriage]:

96% of gays and lesbians - (24% of those polled);
83% of those who never attend church – (21% of those polled);
79% of white Democrats – (21% of those polled);
78% of Liberals – (26% of those polled);
67% of whites age 18-29 – (9% of those polled);
64% of Democrats – (42% of those polled);
62% of singles – (38% of those polled);
61% of age 18-29 – (20% of those polled);
58% of those without children – (60% of those polled);
52% of white women – (32% of those polled);
51% of whites – (63% of those polled);
51% of Asians – (9% of those polled);

Polls showed that gender and income differences shared virtually no correlation with the vote.
Raw data from the poll is also available at http://www.sacbee.com/elections/story/1372009.html.

While the CNN election exit poll has sparked discussion concerning the widely discussed roll of the African American vote in the passage of proposition 8, another report indicates that African American influence was overestimated and that religiosity, party identification, and political ideology were more closely correlated to votes in favor of the proposition.[150]

LGBT Rights "On Warp Drive"

Honk to Chris Turner over at DH Blog for making note of Sir Adrian Fulford's speech at the recent opening of the Pink Law Legal Advice Center in London.

According to PinkNews, "Mr Justice Fulford's appointment as a High Court judge in 2002 was the first time that an openly homosexual QC had been appointed to the court. Mr Justice Fulford, known outside court as Sir Adrian, was subsequently elected at the United Nations in 2003 to serve as a judge on the International Criminal Court."

Here's an excerpt of the speech:

To be out as a practitioner in the year 1978, which is the year I was called, was something of a rollercoaster of a ride. Some of my colleagues were fantastic, others were simply gross in their rudeness and prejudices.

People lost jobs, families were destroyed, lives were broken by the large number of prosecutions of men for such absurdities as allegedly chatting up other men in places such as Old Brompton Rd, thereby 'persistently importuning for an immoral purpose.'

It sounds quite ludicrous to think of those court cases now. Policemen in supposedly provocative tight t-shirts and jeans, acting effectively as agent-provocateurs along that stretch of road between the Colherne pub and the Brompton cemetery in Earls Court.

And that was something that was repeated in every town and city, the length and breadth of the country. What a waste of time and money. What warped morality and how unbelievably destructive it was.

The workplace could be an equal nightmare for the LGBT community. Men and women losing their jobs and facing real discrimination because of their private life. And as for adopting children, you were practically branded a paedophile for even suggesting the idea. And few lawyers were prepared to assist in any attempt to redress those sorts of discriminatory practice.

And inheritance arrangements, what actually happened in respect to the true legal position, when one partner died in a relationship, could be dire. So many men and women suddenly found themselves homeless and without anything, when the relatives of the person who had been ostracised by his or her family for years suddenly descended out of thin air, having not been seen for years, on the day they departed to take every last stick of furniture. No 'civil partnerships' back then and the law did not smile sympathetically on claims that were akin to spouses or wives.

Now why am I visiting the past? It's not just the autumnal reminiscences of an aging judge. But rather, I seek to highlight that we have suddenly travelled a long way in a very short period of time. To use the language of 'Star-Trek', it's as if the warp-drive has suddenly been attached to LGBT rights.

In truth, I cannot conceive that we will in the predictable future return to the ghastliness of thirty-plus years ago. But that said, when you scratch the surface, particularly in times of difficulty when people feel threatened, prejudice, misunderstanding, fear and conservatism with a small 'c' can be found on occasion lurking surprisingly close to the surface.

While we have every reason to be confident about the future, we should also strive to ensure that we do not become blasé about the present. We should not take these fundamental advances for granted. And the more deeply rooted the projects like this become, providing an invaluable service and benefit to both the legal advisers and to clients alike, the more certain we can be that Pink Law will not be an anomaly but rather the shape of things to come.