The Equality Commission has today published a paper giving its views on the legal position in Northern Ireland, following a review of the Supreme Court judgment in ‘For Women Scotland Ltd v The Scottish Ministers’.

The paper sets out a roadmap of the actions the Commission will now take to achieve legal certainty. It also includes initial information for employers, service providers, and public authorities.

It is the Commission’s view that the judgment will be highly persuasive in the Northern Ireland courts and tribunals in certain respects. However, the Commission has also concluded that significant legal uncertainties remain. Most importantly, the Supreme Court judgment did not consider the Article 2 commitments under the Windsor Framework.  

Geraldine McGahey, Chief Commissioner, Equality Commission for Northern Ireland said: 

“After much consideration and analysis, the Commission has concluded that the situation in Northern Ireland, in respect of this matter, is much more nuanced and complicated, and there is significant uncertainty due to our unique legal landscape. 

“We have no interest in merely speculating as to how a court might determine these issues in the future. We will not answer these legal uncertainties by weighing the arguments “for” and “against”. It is important that the Commission shows leadership as people and their lives are at the heart of this issue.

“To achieve greater long-term certainty and clarity for all involved, the Commission will be seeking a Declaration from the courts to address several questions regarding the significant legal uncertainties. 

“Our equality laws do not sit in isolation; they interact with other laws and regulations for which the Commission does not have a remit. We believe other bodies and organisations will also require clarification on the legal position in relation to their own areas of work and may join the Commission in its legal proceedings. 

“The Commission will issue Pre-Action Protocol letters to government departments and other public bodies with legal responsibilities potentially affected by the judgment and to other interested parties. 

“The Commission will also commence a wider consultation process for all interested stakeholders. We want to ensure everyone has the opportunity to respond to questions raised and we welcome input from all our stakeholders. 

“We fully recognise the challenges faced by employers and service providers as they try to navigate these uncertainties. As this is an evolving area of law, we will keep our interim information for employers and service providers under review and offer advice on a case-by-case basis where the law is clear.

“Ultimately, maximising legal certainty and transparency is at the heart of our strategy.  We aim to create a robust framework for offering guidance, rather than being subject to numerous legal uncertainties that may be contested in the courts over the coming years at potentially great cost to the public purse. 

“By adopting this approach, we hope to avoid the toxicity which has sometimes characterised the debate around how to balance the rights of biological women and transgender women by creating a space for debate and adjudication by the courts. 

“We believe our approach will be in the best interests of everyone in Northern Ireland”, concluded Ms McGahey.

Download the Equality Commission legal paper
 

Read more about our approach