Legal clarity sought from Belfast High Court on Supreme Court gender ruling
The Equality Commission in Northern Ireland has said that there is 'significant' legal uncertainty in the wake of the ruling, including how it interacts with existing equality law and with Article 2 of the Windsor Framework.
Chief Commissioner of the Equality Commission Geraldine McGahey said they would consult with other parties on whether they wish to join the legal proceedings on the 'nuanced and complicated' issue.
Ms McGahey said through referring the issue to the courts, they hoped to avoid 'the toxicity which has sometimes characterised the debate'.
The Supreme Court in London declared in April that the terms 'woman' and 'sex' in the 2010 Equality Act 'refer to a biological woman and biological sex'.
The ruling has been interpreted to mean that transgender women can be excluded from women-only spaces such as toilets and changing rooms.
However, the Equality Act 2010 does not cover Northern Ireland.
The Equality Commission was to prepare guidance on the ruling's potential implications on Stormont departments.
In a legal paper published by the Equality Commission on Friday, it said it would request legal clarity from the High Court.
The Commission said that once the High Court decides on the matter, and subject to any appeals, the Commission will then produce its draft guidance, which will be subject to further consultation.
Ms McGahey 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.'
She said the Commission wants to give everyone the opportunity to engage and will welcome input from all stakeholders.
'We fully recognise the challenges faced by employers and service providers as they try to navigate these uncertainties,' she said.
'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.'
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