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

I heard something the other day that was interesting. It was Posie Parker stating that it was the Equality Act 2010 that really messed things up in England. I'd be interested in hearing if Northern Ireland is actually in a better place legislatively because it doesn't have the Equality Act. What do people think?

Well at the minute the argument is trans women are women in law so it’s certainly debatable!

I don’t think people quite understand implications of removing Equality Act 2010. There’s lots of gaps in the NI legislation. It’s mostly just a cut and paste from GB with a bit extra around freedom of political expression.

I remember law lecturers telling me that when the EA 2010 was being written, the drafters considered NI legislation as a model in some areas because our legislation offered more explicit protections in those areas. For example, in some ways we have slightly stronger protection on grounds of freedom of religion & belief than GB - our laws also offer protection from discrimination on grounds of political opinion. I also remember being taught that our fair employment legislation is considered to be high standard because it better allowed for positive change in workforce composition in comparison to equivalent legislation in GB or even other countries.

Anyway, officially, according to the Assembly when it carried out a comparative study of equality legislation in the United Kingdom and Ireland:

In Northern Ireland, the level of protection against discrimination by public authorities when they are performing public functions varies across the protected grounds. For example, there is no protection against age and sex discrimination, some protection against racial and sexual orientation discrimination, and stronger protection against disability discrimination or discrimination on the grounds of religious belief and political opinion. In Great Britain, the Equality Act 2010 harmonised protection against discrimination, harassment and victimisation by public bodies across all equality grounds.

https://www.niassembly.gov.uk/globalassets/documents/raise/publications/2022-2027/2024/executive_office/2924.pdf

Thanks Utopia. Didn't realise that a comparative study had been undertaken.

I'll have a look. Cheers!

No bother 👍 Hope you find it interesting.

NI's unique history has resulted in legislation arising from those unique issues and is often considered of interest to other countries undergoing similar ethnic/sectarian-style problems. So there have been quite a few academic analyses of our legislation over the years, e.g.

https://www.equalrightstrust.org/ertdocumentbank/err_issue04%20christopher.pdf

https://www.sciencedirect.com/science/article/abs/pii/S1353829216303501

I find it quite fascinating to see what outsiders think of us and our laws 🤓

To be honest I’m late to the analysis on the variances.

I think there is strength in some areas like political opinion or affirmative action in the police.

But day to day I’d say rights are less protected in practice. And the legislature and local law lecturers would say they’re better 😂.

So I shall leave the question open. Must in almost all cases it’s cut and paste.

The reason why there isn’t an equivalent to EA2010 is people couldn’t get their act together to agree. It was suggested.

Could I just say thank-you. I've only been on Mumsnet for a few days. This is a very strange place (especially for a bloke!)

I have chatted to some really interesting people who really do actually want to have a chat and pass on some incredibly useful knowledge.

However, I have also met others who appear to want an argument all the time. I get the feeling that there are a number of "big hitters" who seem to think they run the place.

Thanks for taking my comments in good faith.

I think you're right about day to day rights protection. There was a period of time in the late 80s to mid-00s when lots of equal rights cases were going through the courts and judges were looking at how the law applied in a wide range of ways in our post-conflict society but now it's not as common.

My very anecdotal recollection of news stories leads me to believe that most of the interest for the ECNI these days seems to be in cases involving trans/LGB and migrant rights. I don't know if that's because ECNI feel that other groups now have adequate protection thanks to previous cases, or if ECNI is following the new social trends (in the same way as lots of other institutions/organisations), or if it's a case that those groups are shouting loudest and ECNI is thus seeing their needs as more urgent 🤷‍♀️

I think, sadly, the general perception of ECNI these days is that it has become a remote organisation that is more interested in academic ideas like identity politics than in day to day hashing out of issues that affect everyone here. I'm particularly disappointed in their lacklustre approach to enforcing disability rights - the DDA 1995 has been in place for decades and still disabled citizens have a much harder time than other citizens in living full and equal lives with access to the same things as their fellow citizens.

As for us creating our own Equality Act? I think I'd like NI to leave that issue alone for a good while because I don't think our MLAs (who can rarely agree on an approach to any issue) would do a sensible job of creating that particular piece of legislation (based on what I've seen happening in Scotland, Wales, and ROI in recent years).

We're a vibrant and varied bunch here on FWR (the old name for this board was feminism and women's' rights so the acronym has persisted). So many posters here are very knowledgeable and vigorous debaters. I've learned so much from being here over the last number of years and discussing/debating with other posters has really helped me in working out where I stand on or how I feel about various topics.

You're very right that posters here love a good discussion, we're also very forthright in expressing ourselves which, I remember, can be a bit intimidating to new posters. My advice to new posters is read lots of threads to get a feel for discussions and then jump on in when you have something to say.

@UtopiaPlanitia

Nail on the head - 50% of ECNI calls relate to disability matters.

Instead they’re saying the hate crime bill needs to cover intersex people? I think they mean non binary rather than DSD but they’re not intelligent enough to realise the difference.

I think KJK's point was that bundling all the Anti-Discrimination Laws together into the Equality Act 2010 enabled:

• the (unlawful, unofficial) development of a "hierarchy" of Protected Characteristics, with the PC of Gender Reassignment being privileged over the PC of Sex (in fact all PCs trump Sex)
• confusion between the PCs of "Sex" and "Gender Reassignment", with these often being conflated by organisations as a (non-existent) PC of "Gender"
• lack of clear protection and advocacy for women's rights based on legislation, eg. the Women and Equalities Select Committee deviated markedly from the original recommendation in the Women in Parliament 2014 report that a WESC should be established "to raise issues that are a priority for women and review how women are impacted by Government policy."

IMPROVING PARLIAMENT CREATING A BETTER AND MORE REPRESENTATIVE HOUSE
2014 Report by the All Party Parliamentary Group, Women In Parliament
http://mlkrook.org/pdf/APPG_2014.pdf

However, the establishment of the WESC was influenced by ParliOUT: Workplace Equality Network launched in 2010 for LGBTIQ (lesbian, gay, bisexual, transgender, intersex, and questioning) in the Houses of Parliament - both Members and staff; closely associated with Stonewall.

The form WESC took was also influenced by the fact that women's interests were subsumed within the wider framework of the Equality Act 2010. This was taken for granted, hardly worth mentioning.

Feminist Institutional Change: The Case of the UK Women and Equalities Committee
Sarah Childs, Parliamentary Affairs, Volume 76, Issue 3, July 2023, Pages 507–531
https://academic.oup.com/pa/article/76/3/507/6541458

The WESC was established in June 2015.

Remit: Examine expenditure, administration, and policy of the Government Equalities Office (and later Office for Equality and Opportunity) on equalities issues (sex, age, race, sexual orientation, disability, gender identity).

The first act of the WESC? It immediately launched the Transgender Equality Inquiry.

WESC inquiry: transgender equality and reform of the GRA
In 2015 the Women and Equalities Select Committee undertook an inquiry into transgender equality. It received 208 written submissions. In 2021 it launched a second inquiry into reform of the Gender Recognition Act, receiving more than 2,000 submissions. This page provides a reference to some of these submissions.
https://sex-matters.org/wesc/

Reminder: the Women in Parliament 2014 report recommended that a WESC should be established "to raise issues that are a priority for women and review how women are impacted by Government policy."

It is arguable that such high-level hijacking of institutions established to prioritise women's interests would not have been possible if the Sex Discrimination Act and other anti-discrimination legislation had not been bundled into one Act.

The Sex Discrimination Act 1975 had been amended in 1999 to include prohibition of discrimination on the grounds of Gender Reassignment:

The Sex Discrimination (Gender Reassignment) Regulations 1999
https://www.legislation.gov.uk/uksi/1999/1102/regulation/2/made

The Equality Act 2010 created a new Protected Characteristic of Gender Reassignment separate from the PC of Sex. Which was a good thing in principle. However, as we all know only too well, lobbying by trans activist groups resulted in the EHRC 2011 Code of Practice trashing all notion of equality by privileging the PC of Gender Reassignment over the PC of Sex.

It is perfectly possible that embedding the The Sex Discrimination (Gender Reassignment) Regulations 1999 into the Sex Discrimination Act 1975 might have been questioned, challenged and changed without having to bundle all anti-discrimination legislation into one Act. Probably at the behest of trans activists as much as by concern for women's rights and interests, to be fair.

Given the politics at the time, a newly established WESC might still have jumped smartly to the trans activists tune but there are other issues too: most notably, heightened sensitivities around the PCs of Race and Religion, to the detriment of women and girls.

I am not speaking on her behalf because I have not asked her but I understand that KJK believes that the interests of women and girls would have been better protected if advocacy on their behalf had not been hampered by the PC of Sex again being deprioritised in practical application of a catch-all Act.

Calculated misogyny certainly always seems to be a tolerable price people are prepared to pay in order to avoid accusations of racism.

Thanks for that analysis @POWNewcastleEastWallsend .

I wonder whether the problem (in GB) was less about unifying the legislation (there are advantages in having consistent approaches to dealing with each protected characteristic) and more about unifying the Commissions that advocated for equality on each PC? That change came about in 2006 in GB but, in fact, in 1998 in NI as part of the implementation of the Good Friday Agreement. Previously there were separate Commissions, each with its own mandate and each championing its own cause.

I understand that KJK believes that the interests of women and girls would have been better protected if advocacy on their behalf had not been hampered by the PC of Sex again being deprioritised in practical application of a catch-all Act.

If this is what she thinks then she doesn't understand and hasn't been reading FWR many, many threads about this (and not sure why posters keep repeating this supposed quote!).

It isn't the the EA is an all purpose EA but that the GRA was allowed (contrived by Labour) to impinge on the protected characteristic of sex.

The Supreme Court even pointed out that was one of the reasons for the judgement.

Because the protected characteristic of sex integrity is the only protected characteristic that is discriminated against by another protected characteristic, ie gender reassignment that creates the notion of a "legal sex" being the same as actual biological sex.

That's why it comes up so often on FWR that the GRA should be repealed or that gender reassignment should not be a protected characteristic.

I think there are good reasons why it might be better to have, as we used to, the Sex Discrimination Act (*), Disability Discrmination, etc., etc..

(*) Note that the original SDA was past in 1975, so clearly shows that the nonsense statement about gender being used because it was politer never happened, as that law was Sex discrimination. And also in 1975 would only have meant biological sex. And not as some try to retrospectively imply it would cover those with a gender identity.

How sad that in 50 years this law that crystalised that women are discriminated against because of their sex has been undermined by the GRA.

Sorry cant edit for some reason but:

I think there are good reasons why it might be better to have, as we used to, the Sex Discrimination Act (*), Disability Discrmination, etc., etc..

I think there are good reasons why it might be better to have, as we used to, the Sex Discrimination Act (*), Disability Discrmination, etc., etc., but this isn't one of them.

@IwantToRetire : she hasn't been reading FWR many, many threads about this

Probably because she was permanently banned from Mumsnet in 2018. There is life beyond Mumsnet.

not sure why posters keep repeating this supposed quote!

It is the first time I have seen "this supposed quote" mentioned but MyShyCat explains very clearly why he mentioned it:

"I heard something the other day that was interesting. It was Posie Parker stating that it was the Equality Act 2010 that really messed things up in England. I'd be interested in hearing if Northern Ireland is actually in a better place legislatively because it doesn't have the Equality Act. What do people think?"

That's why it comes up so often on FWR that the GRA should be repealed or that gender reassignment should not be a protected characteristic.

Of course the GRA made matters far worse, which is why KJK has been advocating for Repeal for years and also arguing that GR should not be a protected characteristic. Genuine question: are you not aware of this?

I think there are good reasons why it might be better to have, as we used to, the Sex Discrimination Act, Disability Discrimination, etc., etc., but this isn't one of them.

That is interesting. What good reasons do you think there are that we would have been better off keeping Discrimination laws separate rather than combining them into the EA2010?

It is very useful that we have such a close comparison available between how things are arranged in Northern Ireland and the rest of the UK.

Thanks for that. Lots to read. I'll need to take a bit of time to digest.

Legal action over applying landmark ruling on biological sex in Northern Ireland to be heard in December
https://www.newsletter.co.uk/news/courts/legal-action-over-applying-landmark-ruling-on-biological-sex-in-northern-ireland-to-be-heard-in-december-8652081

I appreciate you have written something quite long but just to deal with first 2 comments.

Even if KJK has been banned anyone can read FWR!

I was making the point that for anyone who is on FWR will know that this has been gone over and over again. And not sure why a random remark from KJK would undermine the points that have been made so many times.

The only problem is that Sex is the only Protected characteristic that has been impinged on by another ie why the Judge said it had been discriminated itself.

Also silly to blame the Act. It is the failure of the authorities to ensure it is used correctly, but again as surely everyone knows it is the wholesale capture by all parts of UK of Stonewall law that created the problem.

And again, as often said on FWR, it is the fact that activist groups like FWS, SM who have challenged this misrepresentation. And the individual women who have gone to court.

Its not the law, it is dozy politicians, and I am afraid UK society that seems to be easily swayed.

Which by the way is why I think that if there were separate acts for each protected characteristic the Great British Public would more easily understand it is about specific issues / characteristics and the implications for each.

The integrated EA is more about civil servants, and probably academics, thinking this is the sophisticated way to present it.

As a country we dont work like that, and dumbed down media doesn't help.

So a bit like the Plain English campaign, having separate acts is clearer.

And gets us away from the gravy train of (fake) training of EDI, DEI or whatever stupid money spinner it goes under now.

(And of course the weasel words of the rainbow coalition bundling in same sex attraction as being the same as "gender identity".)

I was making the point that for anyone who is on FWR will know that this has been gone over and over again.

Has it? I will take your word for it because you are probably the most active poster on FWR.

Even if it has been "gone over and over again", MyShyCat states, "I've only been on Mumsnet for a few days." So even if it has been done to death he would not be in a position to know.

It is the sort of discussion that interests me and I have been here for years under various User Names. However, I honestly cannot recall being involved in a discussion before of the pros and cons of separate anti-discrimination legislation vs the EA2010.

And not sure why a random remark from KJK would undermine the points that have been made so many times.

I don't understand what point you are making and I do not know if you are referring to MyShyCats's question or my answer to his question.

If the former, why is there any need to refute that what MyShyCat posted "would undermine the points that have been made so many times"? How could it possibly do that?

The post:
""I heard something the other day that was interesting. It was Posie Parker stating that it was the Equality Act 2010 that really messed things up in England. I'd be interested in hearing if Northern Ireland is actually in a better place legislatively because it doesn't have the Equality Act. What do people think?"

If the latter, how could my answer "undermine the points that have been made so many times"?

Even if it could, and I do not see how it could, why would that be a problem? We remind people often enough that we are not a hive mind and there is not a "Mumsnet position" or an "FWR position". Although you say "points" not "position". Do you mean "position"?

It is hardly a "random remark" anyway - it is covered in the Party of Women Manifesto:

Repeal the Gender Recognition Act (GRA)
The Gender Recognition Act 2004 enables individuals to legally change the sex marker on their birth certificate. This legal fiction has been used to erase women’s boundaries, disrupt sex-based services, and confuse public policy.
We will:

• Repeal the Gender Recognition Act in full.
• End the legal recognition of “gender identity”.
• Ensure all laws and official records are based on biological sex only.
• Protect women’s rights to single-sex spaces, services, and opportunities — with no exceptions.

Repeal the Equality Act 2010
The Equality Act 2010 has been used to smuggle "gender ideology" into every corner of public life — from schools to healthcare to prisons. It has erased the meaning of sex, silenced women, and elevated identity over material reality.
We believe this Act does more harm than good. It is not fit for purpose.
We will:

• Fully repeal the Equality Act 2010.
• Remove “gender reassignment” and other ideological concepts from legal protection.
• Replace the Act with new legislation that defends sex-based rights, free speech, and material reality.
• Ensure that no law compels the public or professionals to lie about sex.

Which by the way is why I think that if there were separate acts for each protected characteristic the Great British Public would more easily understand it is about specific issues / characteristics and the implications for each.

In this and the rest of your post, you and KJK seem to be in agreement. Which makes me even more confused about why you object to KJK's position.

However, debating the whys and wherefores of KJK's views seems to be a bit of a diversion from the main topic of the thread, when all I sought to do was answer MyShyCat's question.

For those interested in constitutional nerdity and who are also at a loose end on Wednesday mornings, the next couple of Wednesdays see the House of Lords Northern Ireland Scrutiny Committee hearing from a series of human rights experts (this week) and the Chief Commissioner and CEO of ECNI (next week) on the operation of Article 2 of the Windsor Framework. According to the post i saw about this on LinkedIn, the public session will be online so might be worth tuning in if you are able to. https://committees.parliament.uk/committee/769/northern-ireland-scrutiny-committee/events/