Equality Commission: ‘Supreme court ruling on gender has legal uncertainties for NI'
A paper released by the Commission today claims that the judgement will be 'highly persuasive' in certain aspects of Northern Ireland's courts, but there are still uncertainties of what effects it will have on NI law.
In April the country's highest court unanimously ruled that the terms 'woman' and 'sex' in the Equality Act "refer to a biological woman and biological sex" following a dispute centred on whether someone with a gender recognition certificate (GRC) recognising their gender as female should be treated as a woman under the UK 2010 Equality Act – which does not apply in Northern Ireland.
The judgement was made by the Supreme Court after campaigning group For Women Scotland, who wanted to overturn Scottish legislation which said 50% of members on public boards should be female, with the definition of female including transgender women.
The decision made headlines across the UK, however questions remained over what the ruling meant for transgender people in Northern Ireland.
The DUP's Upper Bann MP Carla Lockhart welcomed the judgment calling it 'clear and a victory for common sense', while the Ulster Unionist Party's Justice spokesperson Doug Beattie said the ruling 'has major implications for the application of the Equality legislation in Northern Ireland' which he said affirmed that 'transgender women are not women.'
NI based organisation The Rainbow Project acknowledged the decision at the time. saying on a social media statement that the 'ruling is not good news' and that they watched the ruling with 'significant concern'.
The paper also states that the Supreme Court Judgement didn't consider article 2 of the Windsor Framework.
Article 2 of the Framework concerns the rights that are written in the Good Friday Agreement, including protections against discrimination.
Geraldine McGahey, Chief Commissioner of the Equality Commission for Northern Ireland says the Commission will be seeking a Declaration from the courts to address questions regarding legal uncertainties, adding that the commission's approach towards the issues will be in the 'best interests of everyone in Northern Ireland'
'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.'
McGahey also said that the commission hopes to avoid 'toxicity' around the debate around biological sex.
The paper also contains interim information for employers and service providers.
In a poll by the Belfast Telegraph in May, almost three-quarters of people in Northern Ireland agree with the Supreme Court's ruling.
The LucidTalk poll found that 72 per cent of people here agreed with the Supreme Court's ruling, with 20 per cent disagreeing and 8 per cent unsure.
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Daily Mail
13 minutes ago
- Daily Mail
REVEALED: America's most powerful judges who protect the Constitution locked in a toxic, secret battle...
A fiery dispute between two of America's most powerful judges was on public display on Friday as the Supreme Court handed down a bombshell opinion on birthright citizenship. The nine justices who sit on the court frequently tout that relationships between them, despite deep ideological divides, are cordial. But as they wrestle with issues that have left the US bitterly divided, not all of the spats between them fall directly along their political party lines - hinting that they might just not like each other on a personal level. The justices' secret personal feuds have seemingly become so fraught that they are counting down the days until the SCOTUS summer recess - which will be a welcome respite from both work and colleagues, according to Chief Justice John Roberts. This week, the court's liberal wing erupted in spectacular fashion against the six-judge conservative alliance during the biggest ruling of the year thus far. Trump appointee Justice Amy Coney Barrett, 53, ripped into liberal dissenter Justice Ketanji Brown Jackson's arguments in her 6-3 majority opinion in a major birthright citizenship case, with comments that come close to mocking her intellectual rival. Writing for the conservative majority of the court, Barrett hit back at both Jackson and fellow Justice Sonia Sotomayor who dissented. Barrett's scorched earth reply took aim at Jackson mostly, spending 900 words to repeatedly rip into the Biden appointee and the court's most junior member. At one point, Barrett's comments came close to mocking her intellectual rival. She wrote: 'Rhetoric aside, Justice Jackson's position is difficult to pin down.' Barrett accused Jackson of mounting a 'startling line of attack', which in her view was no 'tethered to any doctrine whatsoever'. Some lines resemble jabs from a political debate. 'Justice Jackson appears to believe that the reasoning behind any court order demands 'universal adherence,' at least where the Executive is concerned,' goes one. In perhaps the most sneering comment, Barrett writes: 'We will not dwell on Justice Jackson's argument, which is at odds with more than two centuries' worth of precedent, not to mention the Constitution itself. 'We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.' Jackson had issued ominous warnings in her own blistering dissent. 'Disaster looms,' she said. 'What I mean by this is that our rights-based legal system can only function properly if the Executive, and everyone else, is always bound by law. 'Today's decision is a seismic shock to that foundational norm. Allowing the Executive to violate the law at its prerogative with respect to anyone who has not yet sued carves out a huge exception—a gash in the basic tenets of our founding charter that could turn out to be a mortal wound,' she wrote. 'What is more, to me, requiring courts themselves to provide the dagger (by giving their imprimatur to the Executive Branch's intermittent lawlessness) makes a mockery of the Judiciary's solemn duty to safeguard the rule of law,' she added. Jackson, 71, cited a ruling about the 'accretion of dangerous power, and wrote that the Court has 'cleared a path for the Executive to choose law-free action at this perilous moment for our Constitution—right when the Judiciary should be hunkering down to do all it can to preserve the law's constraints.' She warned of a 'rule-of-kings governing system' compared to a 'rule of law regime.' 'At the very least, I lament that the majority is so caught up in minutiae of the Government's self-serving, finger-pointing arguments that it misses the plot.' Jackson even began the opening section of her argument by dispensing with the traditional saying that she 'respectfully' dissents. 'With deep disillusionment, I dissent,' she wrote. So did Sotomayor, who wrote simply, 'I dissent.' The decisions handed down this week have continued a trend of the liberal judges in the court often losing rulings in the most impactful cases. Sotomayor dissented in the court's 6-3 decision that public school parents must be allowed to take their kids out of lessons involving LGBT books. In her dissent, she warned of a nightmare for schools, saying the ensuing 'chaos' and 'self-censorship' would threaten to 'end American public education as we know it'. She said: 'Today's ruling threatens the very essence of public education. The reverberations of the Court's error will be felt, I fear, for generations.' It is not always as clean cut however, with a decision issued on Friday that endorsed a multibillion dollar fund to expand telephone and broadband services being passed through by a coalition of three conservatives and three liberals. The fund has been used to expand service to low-income Americans and people living in rural areas and Native American tribal lands, as well as other beneficiaries such as schools and libraries. The 6-3 ruling overturned a lower court's decision that the Federal Communications Commission's (FCC) funding mechanism employing mandatory contributions from telecommunications companies had effectively levied a 'misbegotten tax' on consumers in violation of the U.S. Constitution's vesting of legislative authority in Congress. The fund has been used to expand service to low-income Americans and people living in rural areas and Native American tribal lands, as well as other beneficiaries such as schools and libraries. Liberal Justice Elena Kagan, who authored the ruling, wrote that Congress had provided ample guidance and constraints on the Federal Communications Commission operation of the fund. 'We hold that no impermissible transfer of authority has occurred,' wrote Kagan, who was joined by her two fellow liberal justices, as well as conservative Justices John Roberts, Brett Kavanaugh and Amy Coney Barrett. Three conservative justices - Neil Gorsuch, Clarence Thomas and Samuel Alito - dissented. The birthright citizenship ruling was hailed by President Donald Trump on Friday, who told reporters: 'This was a big one. Amazing decision, one we're very happy about. This really brings back the Constitution. This is what it's all about.' Basking in his victory during an impromptu appearance in the White House briefing room, the president vowed to push through 'many' more of his policies after the court win, including curbs to birthright citizenship. The president said he would 'promptly file' to advance policies that have previously been blocked by judges. He said: 'This morning the Supreme Court has delivered a monumental victory for the Constitution, the separation of powers and the rule of law in striking down the excessive use of nationwide injunctions to interfere with the normal functioning of the executive branch.' Friday's case stemmed from an executive order Trump signed as soon as he took office that ended birthright citizenship - the legal principle that U.S. citizenship is automatically granted to individuals upon birth. Under the directive, children born to parents in the United States illegally or on temporary visas would not automatically become citizens, radically altering the interpretation of the Constitution's 14th Amendment for over 150 years. The Supreme Court did not rule on the legality of Trump's order purporting to end birthright citizenship and left open a legal path to challenge it.
The Guardian
an hour ago
- The Guardian
US supreme court limits federal judges' power to block Trump orders
The US supreme court has supported Donald Trump's attempt to limit lower-court orders that have so far blocked his administration's ban on birthright citizenship, in a ruling that could strip federal judges of a power they've used to obstruct many of Trump's orders nationwide. The decision represents a fundamental shift in how US federal courts can constrain presidential power. Previously, any of the country's more than 1,000 judges in its 94 district courts – the lowest level of federal court, which handles trials and initial rulings – could issue nationwide injunctions that immediately halt government policies across all 50 states. Under the supreme court ruling, however, those court orders only apply to the specific plaintiffs – for example, groups of states or non-profit organizations – that brought the case. The court's opinion on the constitutionality of whether some American-born children can be deprived of citizenship remains undecided and the fate of the US president's order to overturn birthright citizenship rights was left unclear, despite Trump claiming a 'giant win'. To stymie the impact of the ruling, immigration aid groups have rushed to recalibrate their legal strategy to block Trump's policy ending birthright citizenship. Immigrant advocacy groups including Casa and the Asylum Seeker Advocacy Project (Asap) – who filed one of several original lawsuits challenging the president's executive order – are asking a federal judge in Maryland for an emergency block on Trump's birthright citizenship executive order. They have also refiled their broader lawsuit challenging the policy as a class-action case, seeking protections for every pregnant person or child born to families without permanent legal status, no matter where they live. 'We're confident this will prevent this administration from attempting to selectively enforce their heinous executive order,' said George Escobar, chief of programs and services at Casa. 'These are scary times, but we are not powerless, and we have shown in the past, and we continue to show that when we fight, we win.' The decision on Friday morning decided by six votes to three by the nine-member bench of the highest court in the land, sided with the Trump administration in a historic case that tested presidential power and judicial oversight. The conservative majority wrote that 'universal injunctions likely exceed the equitable authority that Congress has given to federal courts', granting 'the government's applications for a partial stay of the injunctions entered below, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue'. The ruling, written by the conservative justice Amy Coney Barrett, did not let Trump's policy seeking a ban on birthright citizenship go into effect immediately and did not address the policy's legality. The fate of the policy remains imprecise. With the court's conservatives in the majority and its liberals dissenting, the ruling specified that Trump's executive order cannot take effect until 30 days after Friday's ruling. Trump celebrated the ruling as vindication of his broader agenda to roll back judicial constraints on executive power. 'Thanks to this decision, we can now promptly file to proceed with numerous policies that have been wrongly enjoined on a nationwide basis,' Trump said from the White House press briefing room on Friday. 'It wasn't meant for people trying to scam the system and come into the country on a vacation.' Justice Ketanji Brown Jackson delivered a scathing dissent. She argued that the majority's decision, restricting federal court powers to grant national legal relief in cases, allows Trump to enforce unconstitutional policies against people who haven't filed lawsuits, meaning only those with the resources and legal standing to challenge the order in court would be protected. 'The court's decision to permit the executive to violate the constitution with respect to anyone who has not yet sued is an existential threat to the rule of law,' Jackson wrote. 'Given the critical role of the judiciary in maintaining the rule of law … it is odd, to say the least, that the court would grant the executive's wish to be freed from the constraints of law by prohibiting district courts from ordering complete compliance with the constitution.' Speaking from the bench, the liberal justice Sonia Sotomayor called the court's majority decision 'a travesty for the rule of law'. Birthright citizenship was enshrined in the 14th amendment following the US civil war in 1868, specifically to overturn the supreme court's 1857 Dred Scott decision that denied citizenship to Black Americans. The principle has stood since 1898, when the supreme court granted citizenship to Wong Kim Ark, born in San Francisco to Chinese immigrant parents who could not naturalize. The ruling will undoubtedly exacerbate the fear and uncertainty many expecting mothers and immigrant families across the US have felt since the administration first attempt to end birthright citizenship. Liza, one of several expecting mothers who was named as plaintiff in the case challenging Trump's birthright citizenship policy, said she had since given birth to a 'happy and healthy' baby, who was born a US citizen thanks to the previous, nationwide injunction blocking Trump's order. But she and her husband, both Russian nationals who fear persecution in their home country, still feel unsettled. 'We remain worried, even now that one day the government could still try to take away our child's US citizenship,' she said at a press conference on Friday. 'I have worried a lot about whether the government could try to detain or deport our baby. At some point, the executive order made us feel as though our baby was considered a nobody.' The American Civil Liberties Union (ACLU) condemned the ruling as opening the door to partial enforcement of a ban on automatic birthright citizenship for almost everyone born in the US, in what it called an illegal policy. 'The executive order is blatantly illegal and cruel. It should never be applied to anyone,' Cody Wofsy, deputy director of the ACLU Immigrants' Rights Project, said in a statement. Democratic attorneys general who brought the original challenge said in a press conference that while the ruling had been disappointing, the silver lining was that the supreme court left open pathways for continued protection and that 'birthright citizenship remains the law of the land'. 'We fought a civil war to address whether babies born on United States soil are, in fact, citizens of this country,' New Jersey's attorney general, Matthew Platkin, said, speaking alongside colleagues from Washington state, California, Massachusetts and Connecticut. 'For a century and a half, this has not been in dispute.' Trump's January executive order sought to deny birthright citizenship to babies born on US soil if their parents lack legal immigration status – defying the 14th amendment's guarantee that 'all persons born or naturalized in the United States' are citizens – and made justices wary during the hearing. The real fight in Trump v Casa Inc, wasn't about immigration but judicial power. Trump's lawyers demanded that nationwide injunctions blocking presidential orders be scrapped, arguing judges should only protect specific plaintiffs who sue – not the entire country. Three judges blocked Trump's order nationwide after he signed it on inauguration day, which would enforce citizenship restrictions in states where courts had not specifically blocked them. The policy targeted children of both undocumented immigrants and legal visa holders, demanding that at least one parent be a lawful permanent resident or US citizen. Reuters contributed reporting
The Guardian
an hour ago
- The Guardian
Abstruse yet monumental: the scope and impact of the US supreme court's birthright citizenship ruling
The US supreme court opinion on Friday in a case challenging Donald Trump's attempt to unilaterally end the country's longstanding tradition of birthright citizenship doesn't actually rule on the constitutionality of the president's order. That question – of whether the president can do away with a right guaranteed by the the fourteenth amendment to the US constitution – is still being debated in the lower courts. Instead, the supreme court focused on the question of whether individual district court judges could block federal policies nationwide. The decision is both abstruse and monumental, experts say. It doesn't immediately change anything about how citizenship is granted in the US, and it profoundly shifts the ways in which the federal courts work. To help understand the implications of the ruling, the Guardian spoke with Efrén Olivares, vice-president of litigation and legal strategy at the National Immigration Law Center, a non-profit advocacy group. The interview has been edited for length and clarity. First, what exactly does the supreme court's ruling mean, today, for immigrants across the US who are expecting parents? The immediate impact is null. The supreme court explicitly said for the next 30 days, the executive order ending birthright citizenship will not go into effect. The right to citizenship by birth in the United States continues. Anyone born today, tomorrow, next week, two weeks from now in the US will be a citizen. We can anticipate that before those 30 days run out, there will be another ruling from one of the trial courts or district courts that will shed more light on this issue long-term. Does this mean that states and immigrant rights' groups that have sued over Trump's executive order denying birthright citizenship to the children of undocumented immigrants and foreign visitors will have to change how they are challenging the policy? There were three lawsuits filed on behalf of individuals and organizations against this executive order. All three were seeking to enjoin – which means stop – the enforcement of this executive order. Because it's an executive order of national scope, the rulings of the lower courts in these cases were national in scope, right? Then, the supreme court chimed in and said that is inappropriate for a court to block a policy nationwide, and that a court's ruling should only apply to the plaintiffs or parties right in front of them. So now, those challenging the order may move to seek a class certification, essentially to pursue a class-action lawsuit. Already, the immigration aid groups Casa and the Asylum Seeker Advocacy Project have filed an amended complaint seeking class-action relief in their challenge to Trump's birthright citizenship order. Class-action litigation has existed for years, and what that means is that now the party in front of the court is asking the court to rule not just on its own behalf, but also on behalf of everyone else similarly situated. The class-action suits are most commonly used in cases where people are seeking monetary relief – for example, in instances where there are defects in car manufacturing. In that type of case, anyone who bought this type of car between X and Y dates would be entitled to compensation. The supreme court ruling could now make class-action litigation much more common. How might the supreme court's ruling here impact other immigration cases? Because up to this point, federal judges' authority to freeze policies across the US – with so-called 'nationwide injunctions' – has served as a powerful check on executive power. It has been used to block policies instituted by both Democratic and Republican administrations. What is ironic is that the supreme court has been perfectly fine with nationwide injunctions in the past. For example, justices enjoined the Biden administration's cancellation of student loans. And they had no problem with a nationwide injunction in that case. This latest ruling on injunctions will affect any case that challenges a policy with national implications. We are particularly tracking the deployment of federal or military troops to do immigration enforcement, and continuation of unlawful, discriminatory enforcement of immigration laws on the basis of race. But this ruling will impact lots of cases. It can be immigration policy, it can be an environmental policy, it can be a voting rights policy – all of those things are regulated at the federal level. So now, if federal policy is challenged, unless it is challenged in a nationwide class-action lawsuit, a lower court's ruling would only apply in the state or states where that policy is challenged? Yes, we may have a patchwork of rulings that vary depending on what state you live in. One of the challenges to the birthright citizenship order, for example, was brought by individuals and organizations in Maryland, DC and Massachusetts. If that case is successful, but you live in Nebraska or Wisconsin or Texas, you may not have the same rights to citizenship as if you are in Maryland, DC or Massachusetts. That is totally inconsistent with our system of law for 250 years. In the supreme court's majority opinion, justice Amy Coney Barrett even alluded to the infeasibility of citizenship rules being different in different states. She summarizes the plaintiffs' argument that ''patchwork injunction' would prove unworkable, because it would require [the states] to track and verify the immigration status of the parents of every child, along with the birth state of every child for whom they provide certain federally funded benefits'. And she ultimately writes that courts can issue injunctions to ensure that a victorious plaintiff receives 'complete relief'. What exactly does that mean? I think they're trying to leave the door open for nationwide injunctions to be OK in certain contexts, and it's unclear what those contexts will be. If you have a national, nationwide class action, a nationwide injunction is the only way to give relief to everyone in the class. Still, in practice, I am worried that the language of the ruling lends itself to inconsistent applications based on the court's or the judge's political ideologies.
