DUP MLA hits out over latest twist to Supreme Court gender ruling as Windsor Framework causes NI uncertainty
The DUP MP spoke out after the commission said the ruling, which determined the legal definition of a woman was based on biological sex, would have applied in Northern Ireland if it was not for the Windsor Framework.
Instead, the matter will brought before the High Court in Belfast, which will likely take more than a year.
The Supreme Court judgement has implications for transgender people's access to single-sex spaces.
As the ruling relates to an interpretation of the Equality Act 2010, which does not apply in Northern Ireland, the Equality Commission has to assess how it may be interpreted here.
It believes the judgment will be 'highly persuasive' in Northern Ireland courts, but the situation is 'much more nuanced and complicated, and there is significant uncertainty due to our unique legal landscape,' chief commissioner Geraldine McGahey said.
Specifically, the Supreme Court did not consider Article 2 commitments under the Windsor Framework agreed between the UK and EU in 2023.
Article 2 underlines the Government's commitment to ensure that people in Northern Ireland do not lose equality and human rights contained in the Good Friday Agreement.
The agreement is underpinned by EU law, and under the Windsor Framework, aspects of EU law continue to apply to Northern Ireland.
Ms McGahey said much local equality legislation used words such as 'sex', 'men' and 'women' without providing 'comprehensive definitions'.
But Ms Lockhart said the Supreme Court judgment was a 'victory for the rights of women and girls', and it was 'deeply regrettable' that the commission's response 'appears to cast doubt on the implementation of this landmark decision'.
She continued: 'The suggestion that EU law should continue to dictate matters of such importance to women's rights in Northern Ireland is entirely unacceptable.
'Whether it be immigration policy, equality protections or indeed any other area, the Windsor Framework should not be seized upon to place the rights of local people in limbo. Article 2 is about 'no diminution of rights', yet the Equality Commission does not seem able to set out in plain terms which right was in place and has now supposedly been lost.
'The Government must act swiftly and decisively to make it absolutely clear that EU law is not binding in respect of the Supreme Court judgement and cannot stymie efforts to reassert and protect the hard-won rights of women and girls in our society.'
Hundreds of trans rights activists descend on City Hall to protest Supreme Court ruling
Scott Cuthbertson, of the Rainbow Project, said: 'We have worked hard to understand the ruling and communicate our view, and welcome that the Equality Commission has accepted that Article 2 of the Windsor Framework could have implications for how this judgment is read in Northern Ireland.
'We're working through the commission's paper, including its interim guidance for employees and service providers, and considering its implications for trans people as well as our next steps to defend their rights.'
The commission said it would ask the High Court in Belfast to issue a declaration to clarify key questions.
Given the unique legal landscape, the commission said it was possible 'sex' could be interpreted differently in Northern Ireland to how it was interpreted by the Supreme Court.
Ms McGahey said if it wasn't for Article 2 of the Windsor Framework, 'we would actually be saying very clearly that the Supreme Court judgment applies here in Northern Ireland'.
She added: 'That is why we're saying it's highly persuasive for our courts and tribunals here in Northern Ireland.
'Article 2 is about ensuring there's no diminution of rights that are protected or safeguarded within the Good Friday Agreement.'
Ms McGahey said there was a debate as to which rights were being referred to, civil rights or rights relating to gender discrimination.
Until the High Court process is completed, the commission can only issue 'interim guidance' to employers and service users.
One suggestion is for employers to consider universal shower and toilet facilities, consisting of self-contained lockable rooms that can be used by one person at a time, regardless of their gender.
The intention of this would be for these universal facilities to be designed 'so no one could infer a person's gender or sex simply because they were selected', thus avoiding risking 'outing' transgender people.
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