CAJ Submission to Equality Commission Legal Paper, focusing on interpretation of the characteristic of ‘men and women generally’ in the Section 75 equality duty
The Committee on the Administration of Justice (CAJ) has submitted a response to the Equality Commission for Northern Ireland’s (ECNI) legal paper on the interpretation of “men and women generally” under Section 75 of the Northern Ireland Act 1998.
Following the UK Supreme Court’s ruling in For Women Scotland Ltd v The Scottish Ministers (FWS), which held that “sex” in the Equality Act 2010 refers to biological sex, CAJ sought clarity from ECNI on whether Section 75 covers gender identity as well as sex.
This submission:
- Reviews the legislative background of Section 75, the Sex Discrimination Order (NI) 1976, and EU law obligations under the Windsor Framework.
- Examines ECNI’s position that Section 75, as drafted, covers biological sex only, unless EU law (given continued effect via Article 2 of the Windsor Framework) requires broader interpretation.
- Highlights that past ECNI guidance has at times implied the inclusion of transgender people under Section 75, though this has not been explicitly set out in formal documents.
- Raises concerns about the practical challenges of assessing equality impacts on both sex and gender identity under a single ground, and the complexities this creates for comparators and rights-balancing exercises.
It concludes that ECNI should provide clearer guidance on how Section 75 applies in practice, especially regarding the consideration of both biological sex and gender identity, and how public authorities should address potential clashes of rights in policy-making and equality screening.