Does the For (Some) Women Scotland judgment breach the EU Withdrawal Agreement?

Together with a woman who wishes to remain anonymous, we have taken the first formal step in legal proceedings against the Equality Commission for Northern Ireland.

The commission advised her trans inclusive employer in Northern Ireland that, following the heavily criticised For (Some) Women Scotland decision of the United Kingdom Supreme Court, a woman in its employment who did not have a gender recognition certificate would need to use the men’s toilets. That advice caused the woman in question very serious harm. And, Good Law Project believes, it was simply wrong in law.

The legal challenge raises issues that overlap with Good Law Project’s challenge to the Equality and Human Rights Commission’s interim – and now partially abandoned – guidance.

The law of Northern Ireland, however, is not the same as that in Great Britain. The so-called Northern Ireland Protocol to the Withdrawal Agreement guarantees that there shall be no backsliding, in human rights or protection from discrimination, from the status quo when we left the EU.

The case will require the High Court of Northern Ireland to decide whether the For (Some) Women Scotland judgment means the UK now falls short of certain minimum EU standards protecting human rights and from discrimination. And, if it does, the High Court may be required to disapply the effect of the judgment.

AL Goodbody is acting for the claimants and has instructed Jason Coppel KC leading Laura Curran BL. The claim will be issued in the High Court in Belfast later this week.