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

[UtopiaPlanitia]

The title of the thread says it all.

The ECNI claims that existing sex discrimination law from earlier decades doesn’t define what male and female mean in NI, and that the Good Friday Agreement plus Windsor Framework might also have unforeseen implications on implementing the UK Supreme Court judgment in NI so it is necessary to ask the High Court for a determination.

https://www.newsletter.co.uk/news/politics/further-uncertainty-over-supreme-court-ruling-as-equality-watchdog-stalls-guidance-over-windsor-framework-5197905

My God. How very very very difficult and complicated it's become to let women have single sex spaces.

All this bullshit and it's purely because men, as a sex class, have the power and clout to make this as difficult as possible, so that other men can use those women without boundaries. It's binary. It's a sex based binary of power in action.

'No one's ever said what sex is'.....

Give me fucking strength.

Indeed!

To use a favourite Belfast phrase regarding these stalling tactics we’re seeing employed by various organisations: they’re rippin’ the pish outta it.

Good grief - to know that there are so many adults still whining that they still don't know what a woman is while being in receipt of tax payer funded salaries that should come with an expectation of a basic level of intelligence and competence.

Utter clowns.

What utter fucking bollocks, to use a technical constitutional term.

There is no doubt that the 1976 Order had the same meanings as the 1975 Act in GB. No doubt at all.

There is no doubt that the 1998 Act was written with the same understanding of those words.

The Windsor Framework provision about “no diminution of rights” referred to rights that existed pre-Brexit, and the 1976 Order was then (& still is) the relevant law on sex discrimination.

It is true that what are often referred to as “the unique circumstances of Northern Ireland” require careful consideration in relation to politics, religion, geography, history etc. But not biological reality.

I am beyond cross to read that.

I completely agree @AlexandraLeaving the ECNI are not fooling anybody with this transparently bad faith argument that NI legislation might have a different interpretation & application than equivalent legislation from GB

Why does it need clarification from a lower court, the SC is the highest court in the land, the judgement also came with an 88 page report, instead of whining why don't the earn their pay and read the judgement.

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

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.

Yes, they appear to have given it some more thought and decided to change their interpretation of the SC ruling.

I agree. In my view, ECNI is engaging in pointless duplication of what’s already happening in GB

I also disagree with ECNI that there is potential diminution of rights given that the Equality Act never applied here and the SC ruling stated that the EA always meant biological sex from 2010 onwards. In addition, any rights/protections arising from the NI legalisation dealing with sex discrimination, gender reassignment, the HRA, and Section 75 all existed substantially pre-Brexit so I don’t see how they’re affected by special circumstances in NI arising from Brexit.

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.

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"

The difference between NI and ROI legislation on this matter being an issue was one I hadn’t considered.

Although, as far I’m aware, many EU countries have differing legislative approaches to this issue and that hasn’t caused any problems with the ECtHR. So differing cross-border legislation may not be insurmountable.

I see three possibilities:

• The ECNI are true believers in TWAW and are hoping the High Court will agree with them and frustrate changes arising from the SC ruling

• The ECNI are doing a Starmer and trying to shift blame for policy changes onto the court, they want to avoid making the decision and/or attracting ire.

• The bosses at the ECNI are experiencing truculence and resistance from staff and see this appeal to the HC as their only option to resolve this.

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.

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.

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

Another article in the Newsletter:

Equality body perpetuating idea 'you can be a man in Great Britain - but a woman if you travel to Northern Ireland' - Doug Beattie

https://www.newsletter.co.uk/news/politics/equality-body-perpetuating-idea-you-can-be-a-man-in-great-britain-but-a-woman-if-you-travel-to-northern-ireland-beattie-5199203

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.

Tweet with a link to BBCNI package about the ECNI seeking high court opinion, nothing new but thought I’d stick it here for info purposes:

https://x.com/genspect/status/1938669722960322787

Jim Allister has complained about ECNI undermining the SC judgement:

https://www.loveballymena.online/post/jim-allister-condemns-equality-commission-for-cheerleading-trans-activism-after-supreme-court-ruli

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

I agree with him as well which is a mind-bending experience given I’ve spent years of my life disagreeing with a lot of what Allister stands for 😵‍💫

Having said that, recent years post-Brexit have made me realise that I had gradually drifted towards outsourced tribalism in my politics (something I had always promised myself I wouldn’t do) and now I’m welcoming the chance to work out my stance/position on an issue by issue basis.

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.

The Good Law Project is suing the ECNI.

In a tweet Jolyon Maugham states:

'We will today issue proceedings against the Equality Commission, Northern Ireland. It might be, for reasons we explain, that this becomes the case in the fightback against the ideology of For Some Women Scotland.'

https://goodlawproject.org/good-law-project-sues-ecni/

Edited to add archive link: https://archive.ph/bQO7e