By David Thompson

Copyright newsletter

A letter from department officials to the equality watchdog, seen by the News Letter, has rubbished the legal basis for the body asking the High Court to clarify the judgement – accusing it of misunderstanding the law. The commission says it will “keep its strategy under review and minimising costs to the public purse is always a key factor” in its decision making. However, it says without “addressing the uncertainties” it could expose employers, service providers and public authorities to years of costly litigation. It comes after DUP minister Paul Givan told the Education Authority to scrap its transgender guidance for schools, and introduced a new policy based on biological sex as the criteria for deciding which sports teams children play in, and what changing rooms and toilets they use. In June, the Equality Commission (ECNI) dodged giving its verdict on the implications for Northern Ireland of a landmark UK Supreme Court ruling which clarified the law on the definition of a woman. It was hailed as a victory by women’s and gay rights groups as it defined sex as based on biology, not self-declared gender identity. However, transgender activists claimed that the country’s top judges got it wrong. After initially stating that its initial view is that the judgment “is likely to be followed in cases where similar issues arise” – ECNI appeared to row back on that position. Chief Commissioner Geraldine McGahey said that sex and related terms might not mean the same thing in Northern Ireland as in the rest of the UK, and the province’s equality laws “use terms like ‘sex’, ‘men’ and ‘women’ without providing comprehensive definitions” of what those words mean. ECNI now wants the High Court in Belfast to rule on how the Windsor Framework affects the legal situation in Northern Ireland. It has written to dozens of public bodies, including government departments, reiterating its position that equality laws contain “no definition of ‘men’ or ‘women’”. Its position has been backed by Alliance and Sinn Fein ministers, who had initially claimed that they would take no action within their departments until the guidance had been released – and are now awaiting the outcome of the proposed legal action. However, DUP-run departments have pressed ahead with changes based on the Supreme Court ruling. In March, ahead of the judgement, the UUP health minister Mike Nesbitt requested a halt to new transgender policies in health trusts while a review is carried out – and backed a policy of single sex spaces in hospitals. In its correspondence to interested parties, the commission questions whether equality provisions in the Windsor Framework mean that ‘sex’ is defined differently in Northern Ireland law than in the rest of the UK – and seeks feedback from 59 public bodies, trade unions, business groups and activist groups. In a rebuttal of ECNI’s approach, the Department of Education has responded, saying: “No past, present or future action of the Department of Education is identified in the letter of July 22 as even potentially unlawful. “The abstract application that appears to be contemplated in that letter would be, in the opinion of the Department, wrong in principle and a waste of Court time and public resources generally. The Department does not approve the proposed application and will not assist or encourage the Commission to bring it”. The response continues: “It is the function of the Courts to determine concrete disputes. The Court of Appeal, quoted in paragraph 4.37 of your letter, has noted that no application of the kind contemplated by the Commission has, apparently, yet been made in Northern Ireland. “In the event that the Commission decides to proceed with its improper application please ensure that this letter is included in the applicant’s bundle”. A spokesperson for the Equality Commission said: “It is a matter for the Department of Education to decide how to respond to the Commission’s strategy and associated correspondence. “The Commission’s strategy, which aims to obtain greater legal clarity in the laws within our remit, includes inviting government departments, who have responsibilities for other allied legislation, such as the health and safety at work, provision of toilets to pupils in schools, accommodation in the prison estate etc, to participate in the process with the objective of resolving any similar interpretative uncertainties. “We identified that the Department of Education may have an interest in this process in respect of the Schools Premises (Standards) Regulations (NI) 1973 and in respect of its consideration as to the scope of EU law. “There is no inference that any government departments have acted unlawfully in this regard. We continue to advise all public authorities, employers, and service providers to ensure that their policies are operating in a way that affords everyone dignity while at work or accessing services”.