Equality Commission Northern Ireland says organisations should update policies in line with Supreme Court decision (?)

[IwantToRetire]

Following the recent Supreme Court judgment, we advise all employers and service providers, and public bodies, to review any policies that the judgment may impact on.

As always, we encourage employers and service providers to come to us for advice relevant to their particular circumstances.

We are currently developing formal written guidance on this issue and we anticipate this will be published in June.

It is also important to remember that everyone has rights under equality law not to be harassed or discriminated in their employment, or when they are accessing many services and to be treated with respect as they go about their lives.

https://www.equalityni.org/Footer-Links/News/Employers-Service-Providers/Statement-on-Supreme-Court-Ruling

BUT

Its position confirms that laws are already in place and employers can act now. It says that it is “for each organisation to consider its own policies” and has not said employers must wait for its advice.

... they must do so lawfully and ensure they do not discriminate unlawfully against any person who has the protection of equality law.

“The guidance will be advisory guidance. It will outline advice that the Commission recommends. This will not be statutory guidance, meaning that it will not impose legal obligations on employers and service providers.”

https://www.newsletter.co.uk/news/politics/supreme-court-sex-ruling-northern-ireland-not-in-state-of-limbo-as-equality-commission-says-its-advice-will-not-be-statutory-5122022

So although they say should, it is left open to organisations to wait for written guidance in June?

But seems to imply the Supreme Court ruling does have impact on NI otherwise they wouldn't be updating guidance?

Although that the guidance will only be advisory and not a legal obligation?

Although:

A TUV spokesperson said “This is welcome clarification from the Equality Commission that the situation in Northern Ireland is not in a state of limbo.

“Organisations both can and should act to update their policies in line with the judgement of the Supreme Court which gives clarity on the defence of female only spaces such as toilets and changing rooms.

“One hopes that the political parties at Stormont and ideologically driven journalists who have peddled misinformation on this topic will take note - particularly ahead of a debate in the Assembly on Monday”.

(Dont know if that mean this monday as the only debate I can see listed is about Transphobia)

I think they're saying:

(1) It's obvious that if the Supreme Court thinks that 'sex' means biological sex in the Equality Act 2010, it would take the same view about the meaning of 'sex' in the Sex Discrimination (NI) Order 1976, so organisations in NI should crack on and apply the legislation in that way rather than pedantically pointing out that the NI legislation has not been tested at the Supreme Court.

(2) Their guidance won't be statutory guidance (because their powers are different from EHRC's) and is advisory only. So, while it will - hopefully - be useful as a practical guide, it's not a substitute for organisations just getting on with it now.

I suspect the TUV spokesperson is referring to the debate on IDAHOBIT scheduled for Monday, to debate a motion tabled by four Alliance MLAs. While not specifically about the Supreme Court ruling, it's a reasonable expectation that the subject will come up.

Watching this with interest. My employer has an utterly Orwellian trans policy which has no regard for the needs of anyone except for those who claim a trans identity. I can’t see them making the significant changes they would need to without a fight.

Also watching with interest, I'm in health which is totally captured, our EDI training insists trans people can do whatever they want and must never be questioned about it. Thank god I work in a team that's all middle aged GC women!!

Should this end up in the NI courts then I'd bet money that the court will find the SC ruling applies to NI legislation mirroring the relevant provisions of the EA2010, and any organisation saying "but the Rainbow Project told us it didn't apply" will be left without a leg to stand on.

I suspect the Alliance MLAs will sound off on Monday, but I don't imagine they'll get much support, except for Gerry Carroll who doesn't count.

I'd bet money that the court will find the SC ruling applies to NI legislation

My understanding is that despite NI not being covered by the EA 2010 and having its own Equality Commission, does in fact use the Supreme Court as the final step of any appeal process.

So logically, should there be legal challenges it will end up in the end at the Court that has stated that sex is biological.

Unless of course some fundamentalist TRAs think they could start the process of a legal challenge to end up at the Supreme Court and somehow think that in their hearing the Court will rule that the current decision that sex equals biology was wrong!

You just don't know how out to lunch some of them are. Or rather so utterly convinced they are right.

(Just to be clear I am not in NI but this came up on another thread, and I found by accident the statement from the ECNI that was in fact released last month. Although as a statement it is as clear as mud.)

The statement from ECNI was probably written with clenched jaw and bad grace - they're very TWAW in that org and very convinced that N Ireland is a backwards hole that needs dragging into the FABULOUSNESS of the gender-spectrumy 21st century 🤷‍♀️ Having interacted with some of them in the past, they come across as people who want Belfast to be more like Chelsea or Soho 😊

I think this is a pretty accurate analysis. But gritted teeth or no, at least they have said it.

Perhaps I’m being overly pedantic but this is just wrong, isn’t it?

everyone has rights under equality law … to be treated with respect as they go about their lives.

Everyone has rights under equality law not to be unlawfully discriminated against. There’s no additional right in law to be treated with respect in everyday life.

This kind of gloss is so common it’s almost unnoticeable, but I think it’s responsible for a lot of damage: substituting a legal test for a subjective one and giving it the apparent force of law and institutions.

@GenderRealistBloke interesting point... my understanding too... so key

NI is bound by the SC decision as it has jurisdiction of the UK

so it must be adhered too.

I'm not sure it's quite that clear cut, as the SC decision was specifically in relation to the Equality Act, which doesn't apply in NI. Obviously common sense says the same approach should be taken, but common sense doesn't usually get a look in when trans issues are being discussed!

Exactly. And that’s what my earlier point was saying. The SC ruling is about the application of the EqA, which doesn’t apply in NI. But if it takes this view on what “sex” means in the EqA, it is inconceivable that it would take a different view on the interpretation of the Sex Discrimination (NI) Order 1976. Therefore the sensible approach (which, as you say does not always prevail) would be to crack on AS IF the SC had ruled also on the 1976 Order.

Also the ruling went into a bit of detail on the Sex Discrimination Act 1975, which is folded into the EqA, so there is absolutely no way the court would interpret the NI Order differently.

In which case the EqA not applying directly in NI really is a distinction without a difference, and organisations should know that.

And as I said up thread, if anyone started a legal case in NI to say that it should not be directed to say that sex means biology, and there were endless court cases, in which this contention was rejected, it would eventually end up at the Supreme Court who made the ruling.

I think, guessed, that the ECNI said that stuff about it just being advisory is because on one level it is about the EA2010 they are not part off, but they are part of the UK wide court structure that has the Supreme Court as the final courts.

So at the moment it is advisary - mean if we didn't follow it there could be court cases either way, and the final arbitor will be the court that said sex is biology.

(Not sure as I am not in NI but am expecting some TRA group or personality to talk if not start legal action. If only to keep up the profile of the issue so as to be able to say the Supreme Court ruling was anti trans, not that it was a victory for women's rights. Because if they said the latter than they would be admitting that there demands are against women's rights!)

It's also advisory because (unlike the EHRC) the ECNI doesn't have the power to issue statutory guidance (other than in relation to the public sector equality duty under section 75 of the Northern Ireland Act) so its guidance is always advisory.

Theoretically, a TRA could take a case saying the 1976 Order should be interpreted on the basis that 'sex' means 'fluffy and feminine' rather than 'biological reality', but the lower courts would be quick to interpret the Order in line with the Supreme Court ruling on the Equality Act as they would see that the logic is exactly the same. This is one of the many benefits of the excellent way in which the SC set out its reasoning. If the TRA appealed to the upper courts, they'd get the same. If they pushed the case to the Supreme Court, they would have to demonstrate there was a significant novel matter of law, and I think, given how similar the legislation is, it would be pretty hard to justify that this represented a novel point of law.

It's also advisory because (unlike the EHRC) the ECNI doesn't have the power to issue statutory guidance (other than in relation to the public sector equality duty under section 75 of the Northern Ireland Act) so its guidance is always advisory.

Thanks for the clarification.

Stormont's education minister plans to publish school sports and toilets policy ahead of equality guidance
https://www.newsletter.co.uk/news/politics/supreme-court-ruling-stormonts-education-minister-plans-to-publish-school-sports-and-toilets-policy-ahead-of-equality-guidance-5122626

Can be read at https://archive.is/D7lBP

So looks like there could be different advice, maybe, for different sectors?

That’s guidance for schools from the Education Minister - akin to DfE issuing guidance to schools in England. The DUP hold the education portfolio and will have been delighted to have the opportunity of the SC ruling to update departmental guidance. The DUP won’t feel the need to hide behind the ECNI guidance (as the other members of the Executive will).

It’s a bit of a ‘through the looking glass’ moment to have the DUP acting for women’s rights…

Of course Carál Ní Chuilín wants to change the NI sex discrimination legislation to be inclusive of men claiming womanhood - she is insufferable generally but she has turned into a woke scold in recent years, since Sinn Féin decided to swerve to the woke side as a screen to attract young voters and to distract from past political sins. Ní Chuilín was obnoxious towards the WRN members who gave evidence at the recent Stormont committee.

In NI the different parties take polar opposite positions on practically everything but have to power share to be in government, so the idea that they will work together on this issue to come to a unified position is far from certain.

I think that (the unlikelihood of them working together on this) is the greatest protection against a change in the law. Unlike in Scotland, it theoretically would be possible for the Assembly to legislate to change the meaning of ‘sex’, ‘man’ and ‘woman’ in the 1976 Order, because the devolution settlement is different. But the chances of there being sufficient agreement from both sides to make it possible - within the Exec or even in the Assembly - are pretty low. That is the main reason that the hoped-for Single Equality Bill has not been forthcoming in the past 20 years.

Agree with your analysis of CNC and SF. I think transgenderism provides a convenient outlet for the party’s inherent misogyny. [Of course they are not alone in that.]

“One hopes that the political parties at Stormont and ideologically driven journalists who have peddled misinformation on this topic will take note - particularly ahead of a debate in the Assembly on Monday”.

Was there a debate today?

And if so did anyone listen?

Questions asked re SC ruling from 21 mins into Education debate:

niassembly.tv/question-time-education-monday-12-may-2025/

Didn’t listen, but have had a look on the Official Report.

This contains two Members’ Statements on relevant issues, plus the subject came up at FM/dFM questions, which I thought Emma Little-Pengelly handled well. I still can’t believe we are relying on DUP and TUV to stand up for women’s rights but it seems we are. This explains that there was a Rainbow Project event in Parliament Buildings today, with a very GC-unfriendly entrance requirements. I don’t know any more about that than what is in here. https://aims.niassembly.gov.uk/officialreport/report.aspx?&eveDate=2025/05/12&docID=438445

The IDAHOBIT motion was carried, with several amendments defeated. But I can’t find any record of any debate on them. https://aims.niassembly.gov.uk/assemblybusiness/todaysbusiness.aspx?&td=12/05/2025

Question re SC ruling asked in Executive Office questions session from 9 mins in:

niassembly.tv/question-time-executive-office-monday-12-may-2025/

I agree that Emma Little-Pengelly spoke well in defence of women and women’s rights. She defended GC campaigns too