Just a few thoughts on today's tribunal:
Firstly, those people saying that the judge has an eye on an appeal are probably correct. Naomi has already given him notice that the losing side is likely to appeal whish immediately tells him that Sandie will definitely appeal. So he wants to cover everything even though this now looks to everyone that he is giving way too much latitude to Jane Russell. Naomi gave a very forceful oral application for him to make his decision today. She made the point that it's not the court's job to help the respondent's legal team if they have failed to plead something that could assist them. She reminded him that the other side has a fully-qualified team including a KC so there's no excuse for their mistake. She basically said that if he agrees to the application to amend the pleadings then she will immediately appeal to the EAT to have his decision overturned - but as has been said, he refused.
The judge asked a couple of questions after the submissions (there will be further written ones to both sides). He concentrated on the SC ruling. This worked very much in Naomi's favour because she was able to fully and clearly explain what the ruling said and meant and also the implications for this case. She emphasised why single-sex spaces exist and said that if you let even one man, then it ceases to be single-sex. She said that single-sex spaces exist for all women - ranging from women who don;t mind to those who do for whatever reason inlc previous sex assault or religious. This was good because it covered Jane Russell's 'but most women don't mind' nonsense. She was, as you'd expect, excellent and explained things in plain and clear English. She was able to say that the ruling made certain cases obsolete.
Jane Russell, in comparison, was completely stumped by his questions on the ruling. She said that she doesn't think that the ruling defines biological sex as being what you were 'assigned' at birth, but she was unable to say what is was defined as. She said she'd get back to him. There was a funny and embarrassing moment for her when the judge asked her what Upton's sex was: he paused slightly and asked if she needed to take instruction on that

She refused - but didn't answer. The judge then referenced Upton saying that he was a biological woman. She said that he wasn't talking as a lawyer

.
After those exchanges, I got the impression that he's going to rule in Sandie's favour in that Upton had no right to be in the CR. If he does allow the pleadings to be amended, I think he would do so only to look at the potential damages that Sandie deserves. That's just my feeling though. This case has been so mad that I wouldn't want to bet on anything.
And during her submission yesterday, Naomi did say that even if Sandie is racist, which she added she isn't, even racist people are entitled to the EA protections. Jane Russell explicitly said otherwise and that is the basis of her application.
All in all, Jane Russell came across very badly because it was clear that she and her team missed this potential defence until Naomi raised it in her submission. But as everyone says, the judge knows that more senior judges will be looking at his ruling and clearly doesn't want to have missed anything.
The timings the judge gave are that he and the panel will deliberate in mid-October and the decision will be not earlier than November. He didn't build in any time for reconvening to recall witnesses to specifically deal with the new pleading if he allows the application. I suspect that's because Naomi said that she will immediately appeal to the EAT if he does and things will be taken out of his hands. I feel desperately sorry for Sandie thinking that the end was in sight. Now there's the potential for this dragging into the New Year. If the judge does allow the application and and she still wins, then I imagine Fife's damages will be even higher.
I feel desperately sorry for Sandie thinking that the end was in sight. Now there's the potential for this dragging into the New Year. If the judge does allow the application and and still win, then I imagine Fife's damages will be even higher.