Northern Ireland and the Supreme Court

The Equality Act doesn't apply there - so is there a problem?

The short answer is no, and we explain why here.

After the dreadful misrepresentations of the situation in Northern Ireland in this BBC podcast, The State of Us, it’s important to clarify a few facts around the discrimination legislation that applies there.

The skeleton: the Equality Act does not apply in Northern Ireland, but Northern Ireland is under the authority of the Supreme Court. So how will it work?

Until the Equality Act 2010 was passed at Westminster, Northern Ireland had essentially the same legislation on sex (and gender reassignment) as the rest of the UK.

These were, functionally, the Sex Discrimination Act 1975, with its Northern Ireland order 1976, and the Gender Reassignment Act 2004. With devolution, it also had equality law provision written into the Northern Ireland Act 1998.

When this was written, nobody considered that man and woman meant anything other than adult male and adult female.

Northern Ireland has its own version of the Equality and Human Rights Commission - it’s the Equality Commission for Northern Ireland, the statutory body for enforcing equality law.

One of the most famous equality cases arising in Northern Ireland was what became known as the ‘Ashers gay cake case’. This involved a gay rights activist who lost a discrimination dispute over a cake he wanted to order in 2014. The baker, Ashers, refused the order on the grounds that the message it would have carried - ‘Support Gay Marriage’ - was said by Ashers to contravene their Christian beliefs. The bakery won: the judgement was handed down at the Supreme Court.

Any challenge on the meaning of the word ‘woman’ in Northern Ireland would end up at the same Supreme Court in London.

So - could the Supreme Court decide that the words ‘man’ and ‘woman’ refer to biological sex in England, Wales and Scotland but not in Northern Ireland?

No. It stretches the bounds of possibility. But there’s more.

The ECNI has already said that when similar cases arise in Northern Ireland, the Supreme Court judgement is likely to be followed. For such an announcement to be made on Day One (April 17) after the judgement was handed down is quite something. There are plenty of gender identity believers in the ECNI, but all the same, they knew that the judgement applies in Northern Ireland, and that had to be made clear.

Only this weekend the ECNI has effectively said (see the Belfast News Letter) that employers can act now to comply with the judgement - there’s no need to delay, and organisations and employers don’t need to wait for advice.

The Editorial Director of Northern Ireland, Adam Smyth, and its Head of News and Current Affairs, Kevin Kelly, should know all this. And it should be in a briefing paper for all journalists who don’t already understand it. If it had been, the misleading podcast released yesterday would never have been complied.

However we have this weekend sought to disabuse Mr Smyth and Mr Kelly of their misconceptions around Northern Ireland equality law. We hope to hear no more claims that the Supreme Court judgement in all its clarity may not apply in Northern Ireland. Hopefully no other news outlets will be tempted into similar inaccuracy.