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About the intervention
On 16 April 2025, the Supreme Court delivered its unanimous judgment in For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 (“FWS”). The case concerned the meaning of the terms “woman”, “man” and “sex” in the Equality Act 2010 as applied in the context of Scottish legislation on gender representation on public boards.
The Supreme Court held that, for the purposes of the Equality Act 2010, the terms “man”, “woman” and “sex” refer to biological sex. It also held that a Gender Recognition Certificate does not change the meaning of those terms for the purposes of that Act. As a result, the Court found that the statutory guidance issued by the Scottish Ministers was incorrect.
The judgment applies to the interpretation of the Equality Act 2010 in Great Britain. It has prompted wider discussion about the implications for equality law, public services and guidance in different parts of the United Kingdom, including Northern Ireland.
Protection from discrimination
The Supreme Court also stated that its interpretation of the Equality Act 2010 does not remove protection from trans people, with or without a Gender Recognition Certificate. The Court noted that trans people remain protected from discrimination on the ground of gender reassignment and may also be able to rely on protections relating to direct discrimination, harassment and indirect discrimination in appropriate circumstances.
If you would like to read the full judgement it can be accessed here.
A summary of the judgement can be accessed here.
Northern Ireland
While the FWS judgment provides clarity on the interpretation of the Equality Act 2010 in Great Britain, the position in Northern Ireland is more complex because equality law operates within a different legislative framework.
The Equality Act 2010 does not generally apply in Northern Ireland, and equality issues are largely devolved. The key equality provisions in Northern Ireland were not considered in FWS, nor was the revised Protocol on Ireland/Northern Ireland, commonly referred to as the Windsor Framework. This has contributed to legal uncertainty about the implications of the judgment for Northern Ireland.
Response in Northern Ireland to FWS
The Equality Commission for Northern Ireland (ECNI) is the statutory body responsible for enforcing equality legislation in Northern Ireland. It also has functions, shared with the Northern Ireland Human Rights Commission, relating to the implementation of Article 2 of the Windsor Framework. ECNI publishes guidance for employers, service providers and public authorities on equality obligations.
Following the FWS judgment, ECNI published a legal paper in June 2025 on the meanings of “sex”, “men”, “women” and “gender reassignment” in equality and allied legislation in Northern Ireland. ECNI set out that the Supreme Court’s decision may be highly persuasive in Northern Ireland in certain respects, while also identifying significant legal uncertainty because of Northern Ireland’s distinct legal landscape. ECNI therefore opened a 12-week consultation, described as part of a “Roadmap”, which ran from 27 June 2025 to 19 September 2025.
The ECNI legal paper can be accessed here.
On 8 September 2025, the Education Minister Paul Givan wrote to the Education Authority instructing it to withdraw its 2019 Guidance for Schools, EOTAS Centres and Youth Service on Supporting Transgender Young People (“2019 Guidance”). That guidance had been developed with reference to the Education Authority’s statutory equality obligations and a children’s rights-based approach. It addressed issues including access to toilets and changing facilities, participation in school life and school uniform policies for transgender pupils.
The Minister stated that he had sought legal advice following FWS and had concluded that the 2019 Guidance no longer reflected Northern Ireland law in light of the Supreme Court’s judgment. The 2019 Guidance was withdrawn and taken down from the Education Authority’s website on 8 September 2025.
Also on 8 September 2025, the Department of Education (DE) issued a policy statement on the use of certain facilities, participation in competitive sport and use of pronouns following FWS. The statement defined “boys” and “girls” by reference to biological sex and instructed grant-aided schools to allocate toilets, changing rooms and showers on that basis, restrict participation in competitive sports designated for girls to biological females, and avoid compelling staff or pupils to use pronouns that do not correspond to a person’s biological sex.
The 2025 DE Policy Statement can be accessed here.
NICCY published a statement responding this. This can be accessed here.
NICCY provided a short response to the ECNI consultation on 3 October 2025.
This response can be downloaded on this page in the downloads section.
On 3 December 2025, ECNI issued judicial review proceedings in accordance with its Roadmap. The proceedings seek clarification from the Court on how equality and related laws in Northern Ireland should be interpreted following the FWS judgment, including whether any issues arise under Article 2 of the Windsor Framework.
ECNI has stated that it is not seeking to challenge the Supreme Court’s ruling on the interpretation of the Equality Act 2010 in Great Britain. Its focus is on the application and implications of the judgment in Northern Ireland.
ECNI’s application was served on seven potential interveners or interested parties, including the Good Law Project, the Rainbow Project, the Northern Ireland Office and the Northern Ireland Commissioner for Children and Young People.
Why this matters for children and young people
The legal and policy developments described above may affect how transgender, intersex and gender-questioning children and young people experience education and other public services in Northern Ireland. They may also raise wider questions about how children’s rights, equality law and the best interests of children and young people should be considered in practice.
As Northern Ireland’s Children’s Commissioner, NICCY’s principal aim is to safeguard and promote the rights and best interests of children and young people. In carrying out its functions, NICCY must have regard to relevant provisions of the United Nations Convention on the Rights of the Child.
A summary of the relevant Articles of the UNCRC and Concluding observations can be accessed here.
NICCY has been granted third-party intervener status in the ECNI judicial review proceedings. Its role is to assist the Court by providing submissions on issues relating to children’s rights and best interests, drawing on its statutory responsibilities and relevant children’s rights standards. The purpose of NICCY’s involvement is to help ensure that the rights, views and interests of children and young people are appropriately considered as the Court examines the legal issues arising in Northern Ireland.