Implications for Northern Ireland and the Equality Commission’s Proposed Way Forward

Overview

In April 2025, the Supreme Court's judgment in the case of For Women Scotland -v- The Scottish Ministers clarified that “sex” as used in the Equality Act 2010 refers to an individual's biological sex, and that having a Gender Recognition Certificate did not change a person’s sex in law for these purposes. Although this judgment does not apply directly in Northern Ireland, the Commission considers it highly persuasive because our equality legislation has similar language and purpose.
 

However, Northern Ireland’s unique legal landscape, including Article 2 of the Windsor Framework, introduces significant uncertainties that were not addressed by the Supreme Court’s in its judgment. To provide legal certainty for employers, service providers and public authorities, the Commission will ask the High Court in Northern Ireland to issue a declaration to clarify key legal questions.
 

This is part of a six-step roadmap designed to maximise legal certainty. We will also consult stakeholders to ensure final guidance is credible, workable, and based on a shared understanding of the law across regulators, government departments and other key organisations.
 

We are committed to being transparent throughout this process.

The role of the Equality Commission and Northern Irelands legal framework

The Equality Commission for Northern Ireland is responsible for promoting equality of opportunity, enforcing equality law and advising on its interpretation. We also monitor and advise on the commitment by the UK Government to protect equality and human rights in Northern Ireland after Brexit.  This commitment is part of Article 2 of the Windsor Framework.

Northern Irelands equality laws include

• the Sex Discrimination (NI) Order 1976
• the Equal Pay Act (NI) 1970
• Section 75 of the Northern Ireland Act 1998

These laws, which prohibit unlawful discrimination and/or promote equality of opportunity, use terms like “sex”, “men” and “women”, without providing comprehensive definitions. These laws protect biological women and men from unlawful sex discrimination, and, in some circumstances, they also provide protection explicitly for people who intend to undergo, are undergoing, or have undergone gender reassignment.

Given the unique legal landscape of Northern Ireland, it is possible that the meaning of terms like “sex” should be interpreted differently in Northern Ireland from the interpretation of the Supreme Court. The Supreme Court judgment did not address this, and only the courts can provide the necessary clarification.

Why we are taking this approach

Our approach is different from that taken in Great Britain. Rather than issuing guidance now, we will seek legal clarity from the High Court first, ensuring that future guidance reflects an accurate, legally robust interpretation of the law.  

This approach will also avoid litigation that would inevitably arise without greater legal certainty and could last many years.

The legal uncertainties not addressed in the Supreme Court judgment

Several factors create legal uncertainty in Northern Ireland:

1. Northern Ireland’s legal position is complicated by Article 2 of the Windsor Framework, which may require continued alignment with certain EU equality protection. The Supreme Court also did not consider this in its judgment.
2. The Equality Act 2010 does not apply in Northern Ireland; we have different equality legislation that was not considered by the Supreme Court ruling.
3. In Northern Ireland, Section 75 of the Northern Ireland Act 1998 places a duty on public bodies to have due regard to equality, among other groups, between men and women generally but not explicitly for transgender people. Article 2 of the Windsor Framework may require this duty to be interpreted in line with European law.
4. Equality legislation in Northern Ireland also operates alongside other laws, such as health and safety regulations requiring separate washing facilities for men and women in workplaces. These laws also use terms like “men” and “women” without defining them. The impact of the For Women Scotland judgment on this allied legislation remains unclear.

Only the courts can provide legal clarity on these issues.
 

You can read a more detailed analysis in section A and B of our legal paper on why we have reached the conclusion there is significant legal uncertainty in Northern Ireland.

What we propose to do

To address these uncertainties, the Commission will follow the six-step roadmap below.

1. Publish a legal paper identifying the legal uncertainties.
2. Consult widely over 12 weeks to ensure the right legal questions are being asked.
3. Send pre action protocol letters to people and organisations who have a direct interest in resolving these legal uncertainties and may wish to join these legal proceedings.
4. Apply to the High Court for a declaration as to the correct legal approach to take on the various legal uncertainties.
5. Following this, provide draft guidance which will be subject to consultation.
6. Publish final guidance for employers, service providers and public bodies.

This approach aims to minimise long-term legal uncertainty and provide guidance that is credible, workable and accurate.  In the interim we will continue to provide information for employers, service providers and public authorities.
 

You can read a more detailed account of the stages in our roadmap in Section C of our legal paper.

What employers and service providers should do now

While we work towards greater clarity, employers and service providers should:
 

• respect legal protections for religious and philosophical beliefs, including both gender-critical and gender-identity views, where these are expressed lawfully and respectfully
• contact the Equality Commission for advice on 028 90 500 600

The Commission is providing information for employers and advice in areas where the law is already clear and will continue to work directly with employers, service providers and public authorities (especially in education, justice, and health).