Northern Ireland equality watchdog seeking formal ruling on definition of sex

[IwantToRetire]

The NI Equality Commission is asking the court to clarify how the UK Supreme Court’s interpretation of the Equality Act 2010 in Great Britain should be applied in the different legal context of Northern Ireland, where the 2010 Act does not apply.

The judgment did not consider the particular context of the different legal obligations in Northern Ireland, including Article 2 of the post-Brexit Windsor Framework.

Geraldine McGahey, chief commissioner of the Equality Commission for Northern Ireland, said: “The Commission is obviously not seeking to challenge the Supreme Court’s judgment regarding the interpretation of the Equality Act 2010 in Great Britain.

“Our objective is to secure the greatest possible legal clarity regarding the interpretation of the judgment as it applies in Northern Ireland.”
She continued: “While we recognise that this process delays the Commission from providing guidance for employers, service providers and public authorities, this proactive approach aims to minimise the risks of legal action against them further down the line.

“By seeking clarification from the court at this stage, we aim to avoid prolonged periods of litigation once we provide our advice.

“We believe our approach will enable these contentious issues to be worked through systematically, in a focused manner which respects the diversity of deeply held beliefs and is in the best interests of everyone in Northern Ireland.”

https://www.irishlegal.com/articles/northern-ireland-equality-watchdog-seeking-court-guidance-on-definition-of-sex

Thanks for flagging this

More background reading on the ECNI approach here:

https://www.equalityni.org/SCJ

Lots of male centred hand wringing here from the public consultation:

https://www.equalityni.org/ECNI/media/ECNI/Publications/Delivering%20Equality/ECNI_FWS_Consultation_Summary_Report_2025.pdf

So if we are being kind, it could be said the ECNI is making sure all possible areas of dispute are settling in a public way before committing themselves. ie to stop constant challenges?

So as usual everyone else is being held in limbo and women's rights taking second place so that the usual suspects are being catered to?

I think, in this case, I'd be inclined to be kind. I think ECNI want to make sure they've got clarity so they and others are not embroiled in costly litigation on how the Exit Agreement affects the interpretation of the SDO.

I think this article belongs here

Supreme court: How a Troubles ruling could impact court's definition of a woman - BBC News https://share.google/GfLcEe2Eb0n3w5Jb7

Quite hard to follow that article but it sounds as they're saying that the SC rules on sex might NOT apply in NI - is that your reading of it too?

That would be very concerning.

I think the article is not very clear although it seems to be one person’s opinion.

my understanding of it is that they were trying to argue that the Windsor framework meant that EU rather than UK equality law applied in NI but the Supreme Court have actually ruled that the Windsor framework has a much narrower application. This is good news for the women of NI as the FWS Supreme court ruling that sex is biological would apply.

IANAL though.

but the Supreme Court have actually ruled that the Windsor framework has a much narrower application.

That's the argument but it wasn't clear to me that this is how the judgment is heading. Perhaps because the title suggests the opposite.

But as you say it's an opinion and speculation, rather than a clear analysis of the legal situation. I really hope they do find as you say above!

Legalese makes my head ache. I try not to build my hopes up around gender fuckwittery in the courts.

I'm glad it wasn't just me who found that article very hard to follow! I do sometimes read this sort of thing and wonder if I've got stupid.

The ECNI is supposed to offer guidance on the law in NI.

For years they’ve been an activist organisation substituting gender for sex and acting like trans identitfied people have rights they never had and advocating for self ID.

There is no Equality Act 2010 here. Just Sex Discrimination Order 1976. Since it’s almost word for word the same as SDA 1975 according to FWS that’s means man woman and sex and needs to be interpreted according to meaning at time.

A few bits about gender reassignment were added in 2004 post Goodwin. So that’s the basics.

Twenty years on ECNI say oh we want our 1976 law to actually allow for self ID and mean men can become women. Let’s ask a lower court to confirm that. We can wave the magic wand of Windsor framework about which means we need to keep pace with EU law.

Except SC says in Dillon, Windsor doesn’t give you an EU buffet of rights. You have what you have.

It’s a try on and waste of money. But sure that’s how the trans right activists work. Break the law and be state funded to do so.

McCrudden advises the ECNI so two pro trans views.

Hardly balanced from the BBC there.

No it’s one sided and isn’t clear.

Basically in NI TRA think that they have rights they don’t have.

There was a view that the magic wand of EU rights will trump logic and legislation.

Dillon a case about other things said the impact of EU law in these cases is narrow.

David Thompson covered this last week:

https://www.newsletter.co.uk/news/politics/equality-watchdog-chiefs-face-resignation-calls-as-they-lose-the-confidence-of-unionist-parties-in-ni-assembly-8516624

Archive link to article
archive.ph/Y6SY5

I think the David Thompson article (link above) shows that the half in half out position of NI in relation to the EU is a problem, and that what is decided for NI must also not conflict with EU regulations, including those in the Republic.

Earlier thread: https://www.mumsnet.com/talk/womens_rights/5362990-equality-commission-in-northern-ireland-claims-it-needs-clarity-from-high-court-before-implementing-supreme-court-judgement

And these 2:

https://www.mumsnet.com/talk/womens_rights/5317866-supreme-court-decision-regarding-definition-of-woman-does-not-extend-to-northern-ireland

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

Yes - the real issue here is anyone’s understanding of what EU law actually says on this.

The EU is a broad church and the UK approach to gender issues is pretty progressive.

The EU has Poland, Bulgaria and Slovakia who have state processes to allow transition of gender identity- but much more draconian, some require surgery etc. Any recent EU cases say you can’t force genital mutilation surgery on people (which I strongly agree with). But apart from that most states can do what they like.

So that’s a red herring. Northern Ireland never had legislation that says a man can transubstantiate into an adult human female.

And EU law cannot force it to say so. Otherwise you have a problem across all the other member states who do not agree with the rise of gender ideology.

ECNI are calling for self ID. Only 12 member states have it and some are rolling back from it.

You keep up with EU law by going with the pack. NI is ahead of it.

No one can point to a law that’s says - trans identified individuals in Northern Ireland have the right to be treated as actually having changed their sex.

A collective delusion on the meaning of words does not legislation make.

The ECNI says itself in its legal case says well trans people can change their sex under some laws but maybe not under this law. And they’re supposed to be advising on the law.

The captured civil service lawyers are fueling this nonsense.

It’s not a daft question to ask the courts to determine what the impact of the WF has on how the wording of the Sex Discrimination Order should be interpreted in light of FWS. It’s not a given that the courts (and ultimately the Supreme Court) would take the view that the NI legislation should be interpreted the same as the GB legislation and therefore legitimate to test it, in the different context.

But equally for those advocating that the WF means NI legislation will have to be interpreted to treat TW as women, they might be disappointed to see how the courts view the matter. It would surely depend on them being able to provide that pre-Brexit the SDO would have “correctly” been interpreted as TWAW, and the logic in FWS is that IF certified sex is what counts then in effect you have no sex discrimination protection, which would have rendered the SDO nugatory and pointless, therefore that proves the SDO ought always to have been interpreted as meaning biological sex in line with FWS.

I’m not expressing myself very well, sorry. I think it is important to have a court ruling on this, and important that the courts have access to high quality arguments from the likes of Ben Cooper and Naomi Cunningham.

Well, quite. Also, suppose the WF did require the SDO to align with EU law? We've already got a JR finding that FWS is compatible with the ECHR (indirectly via the HRA) and furthermore that its interpretation of sex extends to sex-relevant instruments that lie outside the EA2010 by virtue of Schedule 22.

Yes, that was the English courts, but every little helps. And yes, ECHR=/=EU. But ECHR is surely the gold standard.

So the legal definition of a woman might be different in England compared to Belfast.

London/England : Woman is the biological sex you are are
Belfast/Northern Ireland: Woman can be a man with or without a penis.

Interesting.

But on a happier note:

And God said let there be light, so that the bonkers gets sunlight.

So in essence, they'd really like to find a way out of an inconvenient law that protects women and gay rights to prioritise and privilege a small group of men in abusing these -

but would like to check this thoroughly through court rather than discover through a lot of bloody inconvenient court cases in the next few years that they can't, with all the mess that will involve, and then having to do it the right way anyway.

Great. Save those women and gay people the court cases and stress, get this established.

It is daft for this body to ask.

Because it’s plain when you map across the SDA 1975 to SDO 1976 it’s a cut and paste job.

FWS was clear in SDA man and women meant biological sex.

The ECNI needs to advise on the law. They get it wrong they get sued.

They don’t go clamoring for EU rights that don’t exist - massive overreach.