The recent UK Supreme Court ruling in For Women Scotland Ltd v The Scottish Ministers has had significant implications for equality law, but its effect in Northern Ireland remains uncertain. Last week, the Equality Commission for Northern Ireland published a legal paper examining whether the Supreme Court's interpretation of "sex" as "biological sex" in the Equality Act 2010 should extend to Northern Ireland, given its distinct and specific legal context and the influence of Article 2 of the Windsor Framework. The Commission now sets out a six-step plan to seek legal clarity and offers interim guidance for employers, service providers, and public authorities.
The Supreme Court recently ruled in the For Women Scotland ("FWS") case that "sex" in the context of the Equality Act 2010 means biological sex, not acquired gender—even if someone has a Gender Recognition Certificate. This has certainly sparked debate on this topic and organisations in Great Britain now must reconsider their policies, with the Equality and Human Rights Commission already working on new guidance to help everyone get to grips with the practical realities of this ruling.
But things aren't so straightforward in Northern Ireland. The Equality Act doesn't apply here, instead, we have a patchwork of laws including the Sex Discrimination (Northern Ireland) Order 1976, the Equal Pay Act (Northern Ireland) 1970, and section 75 of the Northern Ireland Act 1998. These laws use similar, but not identical, language, and none clearly define "sex," "man," or "woman." There is also the added twist of post-Brexit EU protections guaranteed under the Windsor Framework.
Because of all this, the ECNI is asking the High Court for clarity before finalising any guidance ensuring that such guidance is robust and legally compliant. In this article, we'll look at why the FWS ruling doesn't automatically apply in NI, what the ECNI is doing to get answers, and what organisations here should do in the meantime.
Why is the Supreme Court's judgment not automatically binding in NI?
Legislative differences
The ECNI says the Supreme Court's FWS ruling is highly persuasive but not binding in Northern Ireland, since, strictly, it only covers the Equality Act, which doesn't apply here. Our equivalent laws have their own definitions and can be quite different, for example, the Sex Discrimination Order 1976 requires medical supervision for "gender reassignment," while the Equality Act does not. Also, the definitions of "woman" and "man" differ between the Equality Act and the 1976 Order – for example in the Equality Act "woman means a female of any age" whereas under the 1976 Order "woman includes a female of any age".
The Windsor Framework
Northern Ireland's equality law is uniquely shaped by Article 2 of the Windsor Framework, which is part of the UK's post-Brexit deal. Article 2 effectively says the rights and protections from the Belfast/Good Friday Agreement, underpinned by EU law before Brexit, can't be reduced. This is also known as the principle of 'non diminution'. EU law, therefore, sometimes still affects how Northern Ireland interprets equality rules, which might mean a different approach to what "sex" and related terms mean compared to that adopted by the Supreme Court for Great Britain in FWS.
Northern Irish courts have developed a six-part test to decide when Article 2 applies. In this case, if all parts are met, Northern Ireland might have to follow EU law, which could be broader than and diverge from the "biological sex only" approach in FWS. The big question is whether EU law asks for a wider definition of "sex" and "gender reassignment" than that now recognised (for the purposes of the Equality Act) in Great Britain. This is complicated and depends on how the Court of Justice of the European Union (CJEU) interprets this matter. The CJEU has said that discrimination against transgender people can count as sex discrimination, and recent EU rules and cases are leaning towards more protection for transgender people.
Still, there are a lot of unknowns. It's not clear if EU law says "sex" must include gender reassignment or just that transgender people need a certain level of protection. There are also questions about who to compare in discrimination cases, how to handle conflicts between different groups' rights, what protection is given to people not medically transitioning, and how far EU law actually goes.
Allied Legislation
The ECNI acknowledges its primary focus is equality, but it also has to think about how the FWS decision affects other laws that use words like "sex," "man," and "woman" without saying exactly what they mean. This matters for things like health and safety rules and building regulations about separate facilities, and there could be confusion if these words are understood differently in different legislative contexts
How does ECNI plan to clarify the position in NI?
To address these challenges and uncertainties, the ECNI has set out a six-step roadmap which includes the following steps:
1. Publication and Consultation: The ECNI has
shared its legal paper, outlining the main issues and asking for
feedback from stakeholders, including regulators, government
departments, and employers. Interim advice is also included (see
below).
2. Twelve-Week Consultation: Stakeholders can give
their views on the paper and respond to consultation questions to
help shape what questions are asked of the High Court.
3. Pre-Action Protocol Letters: The ECNI will contact interested
parties, such as relevant regulators, to establish who wants to
join the High Court application.
4. Application to the High Court: The ECNI will
seek a declaration from the High Court to clarify key legal
questions, including if Article 2 of the Windsor Framework applies
and therefore changes how "sex" and "gender
reassignment" are understood and applied in Northern Ireland
(when compared to the interpretation of the Supreme Court).
5. Draft Guidance: After the High Court's
decision and considering earlier feedback, the ECNI will draft
guidance for further consultation.
6. Final Guidance: Once consultation is finalised,
the ECNI will publish final guidance for employers, service
providers, and public authorities, updating it as needed in the
future.
What should NI businesses do now?
The process of unravelling these issues will take some time, but because businesses need practical advice in the short term, the ECNI has shared interim guidance (see Annex 2 of its paper) to help organisations deal with the current legal situation. This isn't formal legal guidance, more of a reminder of the law as it currently stands, and an outline of basic standards and practical steps that can be taken now, including these key points:
Minimum standards of treatment for transgender people
- It is still against the law to refuse someone a job, dismiss them, or treat them unfairly just because they're transitioning, planning to transition, or have transitioned (where the Sex Discrimination Order 1976 applies).
- Harassment or victimisation of transgender people at work or when using services is also prohibited. For example, you cannot turn down a job applicant because they are transgender, dismiss someone for planning to transition, or treat a transgender employee unfairly.
Separate sex facilities
- The ECNI suggests a pragmatic approach to this issue, including providing private, lockable rooms for showering, toilets, and changing, ideally with sinks inside, so everyone has privacy and making sure "unisex" or universal spaces are truly private and secure.
- Offering both separate facilities for men and women, plus extra universal facilities anyone can use, no matter their sex or gender identity.
- Letting people whose gender identity doesn't match their biological sex use the universal facilities, so they aren't singled out.
- Designing and signposting these spaces so no one's gender or sex is obvious, keeping things private and respectful for everyone.
Promoting a good work environment
- Employers should understand that staff may have different views about sex and gender, including "gender critical" and "gender identity" beliefs, which are protected by law.
- No one should be treated less favourably for having or sharing these beliefs, as long as their expression of such beliefs is not objectively objectionable.
- Employers should have clear policies and training to stop discrimination and harassment and help foster an environment where disagreement is still managed respectfully.
Public sector equality duties
- Public bodies should keep working to promote equality between men and women and also think about how their policies affect transgender people, until the law is clearer.
- Doing equality impact checks and designing policies carefully can reduce the risk of unlawful discrimination.
A period of uncertainty, but a pathway to clarity?
The ECNI's response to the For Women Scotland case may be frustrating for many as it still leaves things unclear in Northern Ireland. The ECNI hopes the High Court will hear its case in early 2026, but with court delays, that might be optimistic. However, through asking the court for a decision, the ECNI wants to make sure future guidance is clear and legally sound. For now, their interim advice gives something of a framework to follow. The next few months will be key for shaping sex and gender equality law in Northern Ireland, and the ECNI's roadmap goes some way to helping to guide the way.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
