Geraldine McGahey

The Supreme Court ruled unanimously in April that the word “woman” in the Equality Act 2010 refers to biological sex and does not include transgender women, regardless of whether or not they hold a gender recognition certificate.

The case was brought by campaign group For Women Scotland (FWS) in its second challenge to the inclusion of trans women in Scottish legislation aimed at promoting women’s representation on corporate boards.

The Equality Commission for Northern Ireland said at the time that the ruling was likely to be “highly persuasive” in Northern Ireland, notwithstanding that the 2010 Act only applies in Great Britain.

However, in a paper published today, the regulator said it has concluded that the position in Northern Ireland is “much more nuanced and complicated”, both because Northern Ireland’s equality laws were not analysed by the court and because of post-Brexit arrangements.

While it “would be convenient if equality law meant the same in Belfast as it does in Birmingham, Bristol or anywhere else in the UK”, it said it “may be that the meaning of ‘sex’, and related terms, should be interpreted differently in Northern Ireland”.

Article 2 of the post-Brexit Windsor Framework provides that there will be “no diminution” of rights in Northern Ireland as a result of the UK’s withdrawal from the EU.

The Equality Commission’s analysis of case law from the Court of Justice of the European Union (CJEU) has concluded that the “trend” is towards interpreting the terms “sex” and “women” in EU equality legislation “so that the principle of equal treatment in relation to sex applies to transgender individuals”.

However, it said there remain “significant uncertainties” which could only be resolved in the courts.

The key pieces of equality legislation in Northern Ireland are the Equal Pay Act (Northern Ireland) 1970, the Sex Discrimination (Northern Ireland) Order 1976 and section 75 of the Northern Ireland Act 1998, each of which include references to “sex”, “men” and “women” without defining those terms.

Today’s paper sets out a roadmap for achieving “legal certainty”, which will see the Equality Commission issue pre-action protocol letters to “potentially interested parties” ahead of an application to the High Court for a ruling on the EU law questions which apply in Northern Ireland.

Only when the matter has been dealt with by the courts, including the conclusion of any appeals, will the Equality Commission draw up and issue new guidance.

The Equality Commission is also set to consult on the legal questions over the next 12 weeks before any further steps are taken.

Geraldine McGahey, chief commissioner of the Equality Commission for Northern Ireland, said: “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.”

She added: “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.”