Equality Commission in Northern Ireland claims it needs clarity from High Court before implementing Supreme Court Judgement

Apologies if this is covered elsewhere, and if so please direct me! The consultation for this closes tomorrow and I’d like to make sure I add weight to anyone who has responded, but like PP have said, it’s a lengthy document and I’d like to make sure I don’t miss anything. Does anyone know if guidance for responding has been issued by any of our supportive organisations, please?

I am inclined to think that that the ECNI's approach is "slowly, slowly, catchee monkey". They know where this will end up so they are just letting the river flow.

Oh good. Another big loss in court for GLP will be helpful for establishing the case law that some argue is necessary.

I did wonder if ECNI lacked basic reading comprehension in not bringing able to apply the ruling yet, and then I wondered how they could justify making up and using a new definition of woman not endorsed by the Supreme Court.

Agree, it feels a very uncomfortable place to be agreeing with him on something. Although as I said up-thread, it may be canny tactics from ECNI to maintain control over the way things end up in court and avoid petty challenges in the first tier employment tribunal being forced to consider the Windsor Framework. It’s a pity they didn’t think of it earlier and ask to intervene in the FWS case so that the SC could have provided surety then.

Good for him, agree with every word! I wish we had people in Westminster standing up to say that.

I found an article late last night but have now lost the link!

But it went through all the steps outlined in various articles taking into account the Windsor frame work etc., etc.. And its concluding paragraph was that after all stages / legal cases had been exhausted it would end up at the Supreme Court in London to decide.

Which if I remember rightly was something that was said on the earlier thread about this.

But if it is shown that the process has allowed for all avenues to be used to help "clarify" then at no time in the future can anyone say it was imposed on NI.

I see BBC covered it
https://x.com/genspect/status/1938669722960322787?s=46

I think there is a fourth possibility, which may be a variant on your second one: ECNI foresee lengthy legal challenges about the application of the WF if they apply the SC definitions without further clarification (since the SC obviously didn’t consider the WF as not relevant to the EqA) so are wanting to pre-empt this and seek to manage the legal process in a way that leaves them in control of it, rather than waiting to have the terms set by those opposing them. And they are also drawing in all other legislation that refers to ‘men’ and ‘women’ to ensure no one can say “oh but this only applies to the SDO, not to FETO etc’.

And actually having read the whole 66 pages, as opposed to the press release, which I confess is all I had read yesterday, I retract some of my initial exasperation. I think ECNI may be playing this more cleverly than I gave them credit for. [But I stand by what I think is obvious about the SDO and the NIA98.]

i also like the clarity of their interim suggestions on toilet/changing provisions (do proper universal provisions, or do a mix of single sex and universal provisions) and their descriptions of what would constitute discrimination on grounds of transgender status and philosophical beliefs.

In response to PP, I am not sure that the issue is so much about whether ‘man’ and ‘woman’ mean different things in NI/RoI law as whether (a) this is an issue that specifically relates to the GFA (I don’t think it does for transgender people) and (b) a person in NI (say a woman or a transgender person) has had their (actual) rights diminished post-Brexit compared to pre-Brexit (I don’t think they have).

I was interested to see reference to the text of the GFA drafts having changed from ‘sex’ to ‘gender’. Having had some involvement in this area, I am morally certain this was a “we use more genteel language these days” move rather than a specific effort to go broader than biological sex. But others will no doubt give more authoritative opinions in due course.

Thanks Utopia. I also hadn’t considered that point and the ECtHR (Apols for misquoting ECHR earlier). That’s the point ECNI made as well around legislative competence as well. I’m wondering if there’s a bit of politicking and not wanting to destabilise so kicking the can down the road instead.

ECNI need to get their head showered. Which is more likely:

• The High Court says "The 1976 Order means sex in the same way that the 1975 Act does, ergo the reasoning of the Supreme Court applies"
• The High Court says "The 1976 Order seems to say the same things as the 1975 Act, but it doesn't really because following the Supreme Court's reasoning would make the Rainbow Project and yon wee lad who runs Omagh Pride sad"

Yes I see your point and you are correct. The legislation all existed in its current format pre-Brexit. What has changed post-Brexit is the SC clarifying the definition of man and woman (I mean in the legal sense not the material reality sense). The Windsor Framework is to prevent issues with NI/RoI. I think the point trying to be made is that the definition for the legal interpretation of
man/woman hasn’t been set in the EU so if there are different definitions of man/woman in NI and ROI there are issues under the WF. Similarly if there are different definitions in NI and GB that’s also going to cause massive issues. I’m not a lawyer or anything just an armchair expert wondering how we got here sometimes.

The 66 pager is quite the slog but if you read the interim guidance its does appear to go along with the SC ruling (page 47 onwards). There is also a lengthy section on interpretation of CJEU law around this which is where I think the non-diminution of rights bit is coming from. I do find the plans to send pre-action protocol letters to most public sector bodies interesting. This will drag on I suspect and I
wonder if it’ll have to go the same route as FWS
in terms of the lower court’s judgement will be appealed all the way up to the SC. But at least there is a consultation for the public to respond to. Madness when you think about it really.

You mean they have changed their mind since this thread????

https://www.mumsnet.com/talk/womens_rights/5332315-equality-commission-northern-ireland-says-organisations-should-update-policies-in-line-with-supreme-court-decision