Official Report: Minutes of Evidence

The Chairperson (Ms Bradshaw): I welcome to the meeting Ms Geraldine McGahey OBE, the chief commissioner of the Equality Commission for Northern Ireland; Ms Louise Conlon, the chief executive; and Mr Neil Anderson, the deputy chief commissioner. Thank you very much for coming to the Committee, and I invite you to make some opening remarks.

Ms Geraldine McGahey (Equality Commission for Northern Ireland): Thank you, Chair and members of the Committee. Good afternoon. It is our pleasure to be here today to answer your questions. I am joined by Neil Anderson, who is our deputy chief commissioner and the chair of our audit and risk committee, and Louise Conlon, who is our chief executive. We have already provided the Committee with a written briefing, setting out the background and the legal context and the steps that the commission has taken following the Supreme Court judgement in For Women Scotland, including our consideration of the more recent Dillon judgement. I do not intend to repeat that information in my introductory words, but, of course, we are happy to take any questions that you might have as we progress.

To be really clear from the outset, the commission is not challenging the judgement of the Supreme Court in For Women Scotland, which was an important judgement. We have repeatedly stated in unambiguous terms that, were it not for the Government's commitment under article 2 of the Windsor framework, courts and tribunals in Northern Ireland would, and should, deem the judgement in For Women Scotland as highly persuasive in respect of interpreting terms such as "sex", "men" and "women" in Northern Ireland equality law. Immediately following the handing down of the judgement, the commission received queries regarding a potential breach of article 2 of the Windsor framework. As required under our duties, legal advice was obtained, which consequently highlighted significant uncertainties in respect of the legal framework. Therefore, work on the development of guidance that we already had under way was suspended pending the necessary clarification. However, the legal reality is that article 2 of the Windsor framework exists and has potential legal significance in Northern Ireland — incidentally, a matter that was affirmed in Dillon. The Supreme Court in For Women Scotland did not consider article 2 in its judgement because it is not relevant to the interpretation of the separate equality laws that exist in Great Britain. The commission, the Assembly and the Northern Ireland courts simply cannot disregard obligations or potential obligations that exist within the Northern Ireland legal framework. We have carefully considered how best to fulfil our responsibilities in this area. Asking the court for clarity is not a step that we have taken lightly, but, ultimately, only the courts can provide a definitive interpretation of how those legal provisions apply in Northern Ireland. The commission has a statutory responsibility to consider all relevant issues and seek clarity so that any guidance we issue is workable, accurate and robust.

In our legal paper and formal application to the court, we asked that the proceedings be stayed until after the judgement in Dillon was handed down, as it would be key to addressing some of the legal uncertainties around article 2 of the Windsor framework. The Supreme Court issued its judgement in May and, as anticipated, it provided important clarification concerning civil rights. It also confirmed that article 2 is capable of having enforceable legal effects in Northern Ireland in certain circumstances, one of which was expressly confirmed to be where the annex 1 directives apply. That is particularly relevant to our For Women Scotland road map, because it invokes the anti-discrimination provisions of some of those directives. However, Dillon did not resolve all the questions relevant to the commission's application. The question of whether EU directives, as interpreted by the Court of Justice of the EU, require Northern Ireland's equality law to have different meanings for words such as "sex", "man" and "woman" compared with the equality laws in Great Britain remains very much live. As we stated before, the commission cannot ignore the obligations or potential obligations that flow from that.

Following Dillon, three important questions remain about the annex 1 directives. What is the relationship between the bullet-point rights set out in the "Rights, Safeguards and Equality of Opportunity" chapter of the Good Friday Agreement and the annex 1 directives? If the annex 1 directives must fall within the ambit of one of the bullet points, what is the scope of those rights, and do they extend beyond biological sex? If the annex 1 directives must fall within the ambit of one of the bullet points, can they only have direct effect if they are concerned with sectarian violence and conflict? As set out in our briefing paper, we are asking the court to consider the issues that we have raised in a structured and cascading way. We believe that that approach ensures not only that the court considers the questions that need to be answered, but that judicial resources and costs are managed as efficiently as possible.

The commission does not take legal advice and legal action lightly. We considered all the options available and concluded that seeking clarity from the court was the most responsible course of action. The commission is already facing two related judicial review (JR) applications that raise similar questions, albeit from two very different perspectives. One is from the Good Law Project and the other is from the Women's Rights Network. That demonstrates the complexity of the issues involved and that the risk of additional litigation is very real. We recognise that the decision has attracted criticism. The commission has faced calls for resignations and claims that we are acting as activists. I can assure you that I am no activist, nor are my fellow commissioners, and, indeed, neither are staff colleagues. We are simply doing our job and working in good faith to produce legally robust and workable guidance that stakeholders can rely on. Our decisions are based on our statutory duties and the legal framework that applies in Northern Ireland. Without legal clarity, there is a significant risk of continued uncertainty, further litigation and employers, service providers and public authorities being left to navigate these complex issues and questions for themselves.

In conclusion, I reiterate that the commission is not challenging the Supreme Court judgement in For Women Scotland. We recognise the importance of that judgement. Our role is simply to understand how it applies within Northern Ireland's legal framework, including the commitments under article 2 of the Windsor framework. We are seeking clarity so that we can fulfil the responsibilities placed on us by law and provide guidance that is accurate and workable and gives confidence to those who need to apply it. Whatever the outcome of the process, the commission's focus remains on ensuring that equality law is understood and applied, and that everyone in Northern Ireland is treated with dignity and respect. Thank you for the opportunity to say those opening words. Thank you for listening, and we are happy to take your questions.

The Chairperson (Ms Bradshaw): Thank you, Geraldine. Before we open for questions, I advise members that, given the ongoing legal cases, it may be that the delegation from the Equality Commission will not be in a position to answer all the questions from members today or delve into the level of detail that might ordinarily be the case. The Clerk will time the questions so that we all have an equal amount of questioning time. We should show respect and accept that the witnesses will answer the questions as fully as possible, OK?

Mr Brett: How long do we have, Chair?

The Chairperson (Ms Bradshaw): It is usually about eight minutes each.

Mr Brett: OK.

The Chairperson (Ms Bradshaw): I will start with quite a broad question about the impact that the judgement has had on queries and contact that your office has received from the trans community. Have you seen an increase or a change in the type of enquiries etc? Will you give us a bit of a flavour of what the impact has been on the trans community?

Ms McGahey: Since the For Women Scotland judgement was issued, we have had a number of queries — they have not been that large in number — from individuals who have contacted our disability advice line because they feel that they may be impacted on by the judgement. We have also had requests for advice and guidance from employers, service providers and public authorities. I have those numbers.

Ms Louise Conlon (Equality Commission for Northern Ireland): We have had about 20 individual enquiries to our discrimination advice line and about 18 from different public authorities and employers. That is an increase; we have not had large numbers of enquiries on these issues over the years.

The Chairperson (Ms Bradshaw): OK. It is useful to have that. That leads me on to my next question. You will be aware that our inquiry into gaps in equality legislation is still ongoing, pending this case. Do you have anything further to add about the benefits of having a single equality Act in Northern Ireland, given what you have learned through the court case and the fact that it was on the basis of the Equality Act 2010 in GB etc? Do you have any thoughts on how useful a single equality Act in Northern Ireland would be in this type of scenario?

Ms McGahey: The benefit of a single equality Act is that it would bring all the protections into one place. We were always very clear that the Equality Act 2010 could be improved in relation to best standards across all other jurisdictions. I think that, if you were to talk to the Equality and Human Rights Commission (EHRC), it would probably say the same. As it stands, the Equality Act has additional provisions that we simply do not have in Northern Ireland. We have very much a piecemeal approach. A single equality Act that addresses all the shortcomings would be appreciated.

The Chairperson (Ms Bradshaw): Your submission talks about an employment code of practice. You said that that would be guidance upon which employers could rely. What standing would that have? Would it merely be guidance, or do you think that obligations will be placed on employers going forward?

Ms McGahey: We would have to present an employment code of practice to the Department for Communities, which, ultimately, would lay it before the Assembly. That code of practice would be capable of being used as a defence by an employer or service provider in a tribunal. There would be no legal obligation on those parties to use that code of practice, but, should someone take a discrimination case against them, it would be a form of defence. If guidance were issued without there being a code of practice, it could be used in a tribunal as a form of defence, but there would be no obligation on the tribunal to do that; it would be at its discretion. Those are the two different legal standings of those codes of practice.

We have issued an employment code of practice previously. We have no vires to do so on goods, facilities and services (GFS), unlike the EHRC over in England, but we would want to involve all our stakeholders in the consultation process around developing that and take it forward in that regard. However, the decision to do that has not actually been taken as yet.

Ms Conlon: We do not have the vires to do it on GFS, so our initial thinking was that we would do guidance, rather than a code of practice, on employment. That seemed to be the most straightforward way. It would be a quicker process as well.

The Chairperson (Ms Bradshaw): My last question is on that issue of vires and the difference between your equivalent body, so to speak, in GB and you. Do you feel that, as equality law has evolved in other parts of these islands, it would be beneficial for your office to have increased powers and functions?

Ms McGahey: Yes, but I suppose that I have to qualify that by referring to the resources at our disposal. There is no point in having additional powers and responsibilities if we do not have the resources to do that work. There are certain aspects coming forward in the equality standards directive that will address some of those shortcomings, but it is a movable feast, and we can only work with the resources that are at our disposal.

The Chairperson (Ms Bradshaw): Just a small one about the financial position of the commission at the moment, which is not necessarily a question that you were expecting, but do you have any commentary on your allocation from the Executive Office and your ability to manage your full workload?

Ms McGahey: Neil, do you want to touch on that as chair of the audit and risk committee?

Mr Neil Anderson (Equality Commission for Northern Ireland): In my experience as chair of the audit and risk committee, the budget has, at best, been flat over the past several years that I have had responsibility for that committee. Flat in real terms means a continual reduction every year. That has been reflected in reduced numbers of staff. The reality is that, on occasions over the past several years during which I have had responsibility for the laying of the annual report and accounts, our budget has been balanced by reduced costs in staffing. That is what we have relied on to balance our budget. We do things such as rely on agency staff rather than permanent staff. That fits in very well with Geraldine's point that, yes, of course, we desire greater powers, but we need the resources to deliver on those powers.

Ms McGahey: In real terms, since 2008 or 2010, when austerity first came on board, our budget has effectively been cut by 58% in real terms. In addition to that, additional responsibilities have been placed on us. Our staffing level is well below what has been discussed and agreed in more recent times. Presently, we are sitting at 64 staff, I think.

Ms Conlon: Our complement is 131. At the end of this year, it is 60. We are down 16 staff this year, because we are trying to control our budget.

The Chairperson (Ms Bradshaw): My goodness. OK.

Mr Dickson: Thank you very much for joining us this afternoon and for the very clear explanation that you have given to us about where you, as an organisation, are, because, all too often, you are kind of blamed for being a campaigning organisation. Obviously, you have a very clear responsibility to inform the public about equality issues and rights, but you have set out for us this afternoon a clear indication of where you see your responsibilities when it comes to getting that legal clarity, which will then filter down to businesses, organisations, those providing goods and services and individuals who may feel that they are affected by those particular decisions.

I will ask about two aspects of the Dillon judgement. First, will you flesh out for us where you still see gaps in that when it comes to giving clear advice? Secondly, given that Dillon provides clarity to you in some areas, what have you done to disseminate that information to the wider public sector?

Ms McGahey: At the outset, I ask you to bear in mind that there are two organisations involved in the dedicated mechanism: the Human Rights Commission and the Equality Commission. Our remit specifically relates to equality of opportunity and protection against discrimination. The Windsor framework makes reference to the rights safeguards that are contained in the Good Friday Agreement. I have to say that, when we were approached by the Government — bear in mind that we did not ask for that role; it was given to us by the UK Government — and discussions were taking place as to whether we could do it, we clearly asked whether they could give us information on how it would all work, because it was something that was unknown. Hence, the explainer document was developed. It made clear that the bullet-point rights in the Good Friday Agreement were covered and that the non-diminution and dynamic alignment bits would apply to the annex 1 directives. Dillon has really narrowed the issue of civil rights in particular, in that it refers to the bullet points. The opening line in that paragraph cannot be seen as being wide. It must satisfy the Demirel test in that it should be concise and enforceable.

We have not yet looked at the issues around the civil rights bit. We are looking at the annex 1 directives. The Dillon judgement makes clear at paragraph 118 that the annex 1 directives are capable of direct effect and, in addition, that some of the other aspects of the bullet points could, in certain circumstances, also be capable of direct effect. Reference is also made to the resolution of sectarian conflict. The commentary around the annex 1 directives was obiter dictum, which means that it was not specifically required to be considered in dealing with the issue before the Supreme Court at the time. You will see in paragraph 118 the comment that all the parties in the room — the Secretary of State, the families' legal team, the Equality Commission and the Human Rights Commission — agreed that the annex 1 directives could be directly enforceable, and the Supreme Court agreed too.

However, there are some other paragraphs that refer back to the bullet points etc, so we are looking for clarity as to when they apply and whether we have to apply the additional lens. While it is obiter dictum, it has the power to influence lower courts and tribunals. The Supreme Court said that it was not part of its judgement as such, but, while it is there, it is important that we all get clarity on how it applies. To say that the annex 1 directives apply — are capable of having direct effect — brings in the anti-discrimination provisions of the six annex 1 directives that would be engaged in the For Women Scotland case.

Mr Dickson: That is helpful. What advice or guidance have you given so far on public or organisational dissemination of the Dillon decision?

Ms McGahey: We immediately withdrew from our website papers that relate to the understanding of the scope of article 2. It is clear that — we have been open about it from the outset — in good faith, we were defining the scope of article 2 in line with the explainer document issued by the Government and with legal advice. However, in the absence of a robust definition of the issues arising from Dillon, we will not be in a position to give precise, clear guidance to anyone until the issues are resolved.

Mr Dickson: That is very helpful. I very much appreciate what you have done in revising your advice and guidance at this stage. You referred to one other aspect of your work, which is the prevention of discrimination. You said that there has been an increase in the number of calls to your discrimination helpline specifically relating to transwomen and transmen. That is a very small and, I guess, very scared cohort of people in Northern Ireland today. They may well feel that they are being punched down on by players over whom they have no control and for whom they have no responsibility. How have you handled that? Beyond saying to them that we need clarity on the decision as it relates to their position, what additional support have you given to people who have come to you, who may be in a very distressed state?

Ms McGahey: It is important, first of all, to be clear about the advice that we were giving prior to the For Women Scotland judgement. After the Gender Recognition Act 2004 came into effect, our guidance depended on and was subject to case law. There were two seminal cases that defined that guidance, one of which was the House of Lords judgement in A v Chief Constable of West Yorkshire Police. That involved a transwoman who wanted to be appointed as a police officer.

The outcome was that the law lords stated that, if a transwoman could not be visually distinguished from another woman, that person should be treated as a woman. The other case was Croft v Royal Mail, which was decided a short time later. It focused on a person who had embarked on a process of transition wanting to use the toilets of the gender that they were going to assume. The finding of the tribunal and the Court of Appeal was that those rights could not be asserted on the day that the person commenced transition. It said that the person might acquire those rights at some point in the future but not immediately. That was the basis of all our guidance. Indeed, that is why Good Law Project is seeking a judicial review: we have never supported or advised that anyone could self-identify and use women's or same-sex facilities, whether they be toilets or changing rooms. That was never part of our guidance.

When it comes to giving support, we have been clear that respect and dignity for all parties are paramount in all this. It is about a balance of rights. People have rights, and one set of rights does not trump another.

Mr Dickson: That is much appreciated. Thank you very much.

Mr Brett: Colleagues, thank you very much indeed. The Equality Commission occupies a unique position here in public life. It is entrusted with significant powers, significant influence and, ultimately, a significant amount of public funding. There is a growing concern among sections of the community that the Equality Commission has moved away from its core purpose of ensuring equality of opportunity and into the political space. I know, chief commissioner, that you will refute that, and we can tease that out.

I will turn to your written evidence. Paragraph 14 states:

In the Equality Commission's view, what are the arguments against using biological sex as that definition?

Ms McGahey: If we knew the answer to that — I am trying to be as honest and open as I can — we would not have embarked on the strategy of trying to get legal clarity. If the annex 1 directives apply, do various instruments of EU law apply? Where is EU law taking us? If it differs greatly from the stance that our current legislation provides for, and if, for example, it is moving in the direction of self-identification, we will document that, come back to the Assembly and to Westminster and say, "This is where our legislation currently sits, this —"

Mr Brett: Your evidence, chief commissioner, states that you recognise that there are arguments for and against. What are the arguments against "sex" meaning biological sex?

Ms McGahey: The only arguments that can be constructed are around the gender recognition certificate: its standing and the rights that it affords people. It is about the balance of rights that EU law might be taking us in the direction of. We have always maintained the view that you cannot assert the right to enter into the same-sex facilities of a gender that you aspire to have. We have been clear on that. However, at that stage, we were in line with the initial Scottish judgement that, once a person has a gender recognition certificate, that person can be classified in that way and able to use those facilities.

You have to remember that, from early 2020, as case law was starting to develop, the public debate was becoming really toxic. We felt really uneasy about where we were with our guidance, so we retained the services of a legal team from London, on the basis of the Equality and Human Rights Commission's codes of practice and where the public debate was going, to develop robust guidance based on the law at that stage. We were at the final stages of that when the Supreme Court issued its judgement. We had to park it once we got the enquiry about the applicability of article 2. We would have issued our guidance by now, had it not been for that.

Mr Brett: The Dillon judgement was quite clear that article 2 of the framework cannot be stretched beyond reasonableness. In fairness, I think that the Equality Commission recognised that in withdrawing some of its guidance.

Ms McGahey: We withdrew guidance because so many uncertainties needed to be thrashed out. I would refer you to paragraph 118 of the judgement in particular, which clearly states that the annex 1 directives are "capable of having direct effect".

Mr Brett: That is in certain circumstances.

Ms McGahey: Yes, in certain circumstances. It is a question of what those certain circumstances are. We cannot answer that. The commission does not have any judicial decision-making powers in all this.

Mr Brett: I know that.

Ms McGahey: We have always been clear that, ultimately, courts and tribunals will determine whether there has been a breach of article 2. We give advice and guidance but do not make the decision.

Mr Brett: How much money did the commission spend on intervening — becoming a notice party is probably a better term — in the Dillon case?

Ms McGahey: We were not a notice party; we were interveners. The purpose of intervening was to assist —

Mr Brett: I know the purpose. How much did you spend?

Ms McGahey: Have you got the details there, Neil?

Mr Anderson: I am not able to completely disaggregate everything to give figures individually, but I can say that, in total, we spent £55,000 plus VAT. That includes our dealing with the judicial reviews taken against the Equality Commission in those matters.

Ms Conlon: To clarify, it was around £35,000 in the last stage of Dillon. The figure of £55,000 is for the case to date plus the two JRs.

Mr Brett: Is that one of the Equality Commission's biggest spends on a case?

Ms McGahey: No. The judicial review that was taken against the commission in the case of the Children's Law Centre regarding the budget —

Mr Brett: What about the Ashers case that you lost in the Supreme Court? Was that not a bigger spend?

Ms Conlon: I think that it is on record as having cost £250,000 — a wee bit more than that. That was over a number of years from 2014, which includes when the case was in the County Court.

Ms McGahey: The money that we are spending on the For Women Scotland and Dillon cases does not come from our core budget; it is funded through Treasury, and the funding —

Mr Brett: It is still public money.

Ms McGahey: Absolutely, it is still public money.

The Chairperson (Ms Bradshaw): Let the commissioner finish.

Ms McGahey: I want to make clear, however, that that money is provided to us by the UK Government specifically for the purpose of clarifying article 2. It is not designed for any purpose other than that. We and the Human Rights Commission each receive a sum of money for the work that we do, and that is agreed for, I think, two more years. It is ring-fenced specifically for that purpose.

Mr Brett: My final —

Mr Anderson: Essentially, two approaches could be taken to the finances. We acknowledge that there is public money involved, but there are, essentially, two approaches. The approach that we are taking is to invest up front in order to seek the necessary clarification to give answers to employers, organisations and individuals. The alternative approach would be to leave that clarification to happen gradually over time through JRs, tribunals and other court cases. In our view, that would be substantially more expensive for the Equality Commission and the public purse.

Mr Brett: It is still public money. It does not matter whether it is ring-fenced or comes from UK Government; my view is that all public money should be spent appropriately.

You may have noticed that the head of the Civil Service issued a notice to all her staff today, stating that, in light of ongoing legal proceedings and the current circumstances, members of the Northern Ireland Civil Service cannot take part in political campaigning, particularly around Pride events. Chief commissioner, at the start of the meeting, you were at pains to make clear that the commission is not an activist body and that your commissioners are not activists. I assume, therefore, that you have issued a similar directive to the Equality Commission and your staff members, stating that it would be highly inappropriate for them to be involved in an official capacity in any forthcoming Pride event.

Ms McGahey: In 2022 or 2023, four or five members of staff participated in the parade. Each year, we take a stand from which we provide leaflets and engage with people on what their rights are under legislation. That is part of our education and awareness-raising programme. We have been very clear that we do not engage in those kinds of events. No one has participated in the parade since that time. We do not get involved in political activism, and our staff should not do that either.

Ms Murphy: Thank you, all, for coming in today. Given the ongoing legal case, I will try to be as concise as possible in my questions. Given the lack of legal clarity at present and the vacuum in which many organisations and statutory bodies in particular are working — I know that, last September, the Education Minister removed some guidance for pupils in schools — how should statutory bodies and other organisations proceed in the current space?

Ms McGahey: In our legal paper — our strategy for how we plan to resolve the legal issues — we included some interim information. At the heart of that interim information is the aim to provide respect and dignity for everyone, and we set that out quite clearly. We are not in a position to issue guidance, but we talk to people and answer individual queries. We advise people to come and speak to us, because every set of circumstances is different. We will try to assist them in how to best protect the dignity of everyone involved. It is based on the guidance that we issued before the judgement that you cannot self-identify and use public spaces.

I have forgotten the other part of your question.

Ms Murphy: It was about the procedures for statutory bodies and organisations. You mentioned that they can come to you for advice on a case-by-case basis. Even though you provide advice on a case-by-case basis — "niche" is the wrong word — it will depend on the policy in each organisation.

Did the Department of Education approach you —

Ms McGahey: Before it removed the guidance?

Ms Murphy: Yes.

Ms McGahey: I have to say that we approached the Education Authority before the guidance was removed, because we had some concerns about it. We had already identified that some issues did not sit easy with us, but we had not been told that the Minister was going to withdraw the guidance in the way in which it happened. However, I have to be honest and say that we flagged up some issues.

Ms Murphy: I know from your written briefing that some dates in September have been mentioned. From now until the end of the JR, what timescale roughly are we looking at?

Ms McGahey: Judge McAlinden was very clear that he wants to make sure that everyone who wants to have a say will have a say. He was very strict in setting a deadline of 28 June for any party to notify of their desire to be either an intervener or a notice party. To date, we have a number of notice parties. From the very outset, we had representation from the Secretary of State, the Cabinet Office, the Department of Education, the Good Law Project, the Rainbow Project and the Women's Rights Network. We now have the Northern Ireland Commissioner for Children and Young People, and we have received confirmation that the PSNI wants to be a notice party as well.

The time frame is that we have another review hearing in the courts on, I think, 7 September. Judge McAlinden has set aside two weeks, commencing 30 November, for the leave hearing. He seems to be keen to move it on at pace. The outcome of the discussions and the number of parties will determine how much of those two weeks is required. If leave is granted, we anticipate that the hearing will be in spring 2027.

Ms Murphy: I have one final question. Apart from the Department of Education, which you mentioned, have you had any correspondence or engagement with other Departments or statutory agencies?

Ms McGahey: Absolutely. We have embarked on a rigorous programme of engagement. Once we developed our legal paper on the uncertainties and issues that needed to be resolved, we embarked upon a consultation of, I believe, 12 weeks to 18 weeks. We had meetings with all Departments and with trade unions and employers. I can give you the precise figures, if I can find them, so that you know who was involved.

There was a 12-week public consultation, during which those who were consulted were asked to respond to six consultation questions. We received 39 written responses, 21 of which were from individuals and 18 from organisations. Eight of those organisations were public-sector bodies, seven from civil society and three from other organisations — one a political party, one a trade union and one a law firm. We have engaged with people by asking them to come in and meet us. Louise and I went out and met other organisations to try to be as open and transparent as possible and to encourage people to give their views, regardless of whether they agreed with us. If this process is going to deliver meaningful results, we need everyone's views on the table, because we can only secure a true and robust definition and clarity when everyone has had the opportunity to speak.

Ms Murphy: Are those consultation responses available publicly?

Ms McGahey: Yes, they are on our website, as is our original order 53 — the note that we submitted to the court at the beginning of June. Over the next couple of days, our revised order 53 will be on our website. We have a dedicated web page because we want to be open and transparent. Everyone will be able to look at it. We have actively encouraged people and, in particular, Departments, to engage with the process and to be a notice party or an intervener, because, regardless of people's views — whether you are pro-trans or pro-women's rights — your view is valid and important. They all need to be in the mixing pot. Judge McAlinden has been clear on that, as well. He wants everyone to have a voice.

We have had correspondence from many of the organisations that we engaged with to say that they want to be kept informed and that they are not, at this stage, declaring whether they are going to intervene or ask to be a notice party. We will know by 28 June whether the number has increased. We are hoping that organisations, such as the Human Rights Commission, which has a remit in respect of other rights, will engage, but, at the moment, we do not know whether it will.

Mr Gaston: It is good to, finally, have you at the Committee. We have heard that you take a stand at the Pride parade. Does that cost you any money?

Ms Conlon: It costs around £300 or £400.

Mr Gaston: Who is that paid to?

Ms Conlon: Pride festival.

Mr Gaston: So, you fund Pride by taking a stall. What other parades do you take a stall at and fund their organisation?

Ms Conlon: The Mela and the Disability Pride event in Carrickfergus, for example. Over the years, we have gone to various events to promote rights.

Ms McGahey: Special educational needs.

Mr Gaston: Big events?

Ms McGahey: It depends on what the issues are and on whether there is the potential for people to be there who fall into one of the categories for which there are legislative protections. It could be employment rights. We have been involved in events where we have promoted the employability of disabled people, for example. There is a wide range of issues, and each one is considered on its own merits, but we do not support for-profit organisations. We are clear on that.

Ms Conlon: May I add —

Mr Gaston: What events do you attend on the Twelfth day?

Ms Conlon: I was going to add that it depends on money, as you will understand. For example, we went to the Balmoral show for a number of years, but we do not have the staff or resources to do that anymore. Unfortunately, we have to limit our engagement, because we have lost our entire outreach team. We do not do as much outreach as we used to, but we choose — [Inaudible.]

Mr Gaston: What Twelfth day events do you attend?

Ms McGahey: We usually attend events on foot of an invitation. We have never received an invitation to attend any Twelfth day events. We would gladly welcome such an invitation, because equality is for everybody. We are at great pains to encourage wider society to recognise that.

I will give you an example. Demographics are changing in Northern Ireland; populations rise and fall. We believe that the Fair Employment (Northern Ireland) Order 1976, for example, is every bit as important today as it was when it was first introduced, as was the Fair Employment and Treatment (Northern Ireland) Order 1998 at the time of the Good Friday Agreement. Equality is not just there for one side of the community, regardless of people's views or how it might have been politically "weaponised" or whatever your terminology might be; it is there for everyone. As one population rises, and the other falls, they still require a level of protection as the others did before.

Mr Gaston: So, you recognise Pride as a political event, and you do not permit your staff to take part in it. At the start, you were very keen to distance yourself from the allegation that has been made about the Equality Commission being activists. Surely, however, going to that event is taking part in political activism.

Ms McGahey: I would, respectfully, disagree with you in that regard. Part of our remit under all the various statutes is to educate and raise awareness of people's rights, to challenge discrimination and promote equality of opportunity. Some groups are really hard to engage with, and if we —

Mr Gaston: Do you understand why, when you spend £150,000 to take Ashers to court? Can you understand why Christians, then, perhaps do not want to engage with the Equality Commission because it is interested only in one side?

Ms McGahey: That is really far from the truth. I would love to be able to give you the detail of the religious background or political viewpoints of the people whom we have supported. If you look at the press coverage that we have received on foot of settlements for individuals, you will see that those individuals came from right across Northern Ireland society, in terms of political viewpoint or religious breakdown etc. We do not favour one more than another. If you can assist in getting us an invitation to attend a Twelfth event, I would very much welcome that.

Mr Gaston: Would you be happy to pay £400 for the pleasure of going?

Ms McGahey: Absolutely, if we are required to do so, and we have the resources.

The Chairperson (Ms Bradshaw): Members, if we ask a question, we have to allow the witnesses to give a substantive response.

Mr Gaston: I am very aware that we have only eight minutes.

The Chairperson (Ms Bradshaw): I gave somebody an extra minute there, so you actually have nine minutes. Go ahead; you are halfway through.

Mr Gaston: Thanks very much.

You provided the Committee with a very useful submission, in which you cite the Sex Discrimination (Northern Ireland) Order 1976, the Equal Pay Act (Northern Ireland) 1970 and section 75 of the Northern Ireland Act 1998. Is it the Equality Commission's position today that those pieces of legislation are unclear as to what the terms "male" and "female" mean?

Ms McGahey: I am sorry; are those —?

Mr Gaston: As you sit here today, are you unclear as to what "male" and "female" mean?

Ms McGahey: I am very clear about the biological definition of male and female. What we are unclear about are the protections that are afforded to men and women and people who have a gender recognition certificate or are trans. Section 75 of the Northern Ireland Act 1998 arose from the Belfast/Good Friday Agreement. It talks about equality of opportunity and assessing the impact on a whole range of categories — the nine categories — as set out in the legislation. One of those is "men and women generally". Where are the people who have transitioned or change their gender? Where are their views? Where is the impact of policy on those people taken into account? That is one of the things that we are seeking clarity on. Does "men and women generally" — those are the words in the legislation — and the word "generally" have a wider meaning, or does it not?

Mr Gaston: You mentioned the Dillon judgement. I will quote from paragraph 157:

Where in that is EU law being implemented? Where is it anchored?

Ms McGahey: Paragraph 157 is the discussion —

Mr Gaston: It is about the Windsor framework.

Ms McGahey: — on the Charter of Fundamental Rights.

Mr Gaston: It talks about article 2 of the Windsor framework.

Ms McGahey: It is discussing the aspects that relate to civil rights and the Charter of Fundamental Rights. From paragraph 149 onwards, it states:

That is where the judgement discusses the treaty on EU citizenship and various other pieces of case law, and it is about the position in relation to the Charter of Fundamental Rights.

I sincerely apologise, but I cannot answer those kinds of question because my background is not in human rights. Those questions would need to be addressed to the Human Rights Commission. The Equality Commission intervened in the legacy case — the Dillon judgement — only to provide clarity to the court in relation to aspects of article 2 of the Windsor framework. Those other issues emerge when you are dealing with the Belfast/Good Friday Agreement and the civil rights interpretations.

Mr Gaston: I will go back to the legislation that I listed. Do those pieces of legislation refer to "sex" or "gender"?

Ms McGahey: They refer to sex, but they also make reference to the Gender Recognition Act 2004.

Mr Gaston: On 6 February 2025, in response to a press query, a spokesperson for the Equality Commission stated:

Surely that refers to biological sex?

Ms McGahey: It does, and that is where our position, advice and guidance have always been before the For Women Scotland judgement. We took into account the judgement from the Inner House of the Court of Session, which expanded on the judgement from Croft v Royal Mail Group. That put a point on the timeline where someone might acquire the rights of their acquired gender, and that was when they had a gender recognition certificate. In Northern Ireland, our legislation is quite clear on how to get a gender recognition certificate. From our understanding, only about 60 people in Northern Ireland have a gender recognition certificate. I could be challenged on that figure, but it is a very small number of people.

Mr Gaston: I have one small —.

The Chairperson (Ms Bradshaw): You have had nine and a half minutes. No. Every time you say that it is a small question —

Mr Gaston: It is a small one.

The Chairperson (Ms Bradshaw): — it is never a small question. One line.

Ms McGahey: We will try to answer it very briefly so as not to take time.

The Chairperson (Ms Bradshaw): OK. One line each.

Mr Gaston: Is the Equality Commission a member of the diversity champions scheme?

Ms McGahey: No.

Ms Conlon: No.

Mr Gaston: Has it never been?

Ms Conlon: It has never been.

The Chairperson (Ms Bradshaw): Thank you.

Ms Sugden: My thoughts on the court judgements are that we should not have been surprised by them. Ultimately, judges interpret the law that has been put in front of them, which has been decided by parliamentarians or legislators. They will look to the context in which the law was made and come to a judgement. If there are issues that relate to the judgement, the issue is with the law itself and its interpretation, rather than its being about whether people like it or not. Ultimately, if they do not like it, they will go to their legislators and ask for a change.

It points to the limitations of the Equality Act in England and Wales; it also points significantly to the limitations of equality law in Northern Ireland. Whilst we have the overarching judgement of the Supreme Court, we do not have any legislation that clarifies what is needed. I am sympathetic to the Equality Commission's interpretation of what that is. If we are complaining about that, we, as legislators, must take on the charge and create the appropriate law to provide the clarity.

The commission has done a lot of work in that area. Part of the role of the commission is to advise the Government. Is the commission advising the Northern Ireland Executive about the gap that exists and the problems that are being experienced because the legislation is not competent or does not exist and that, therefore, they have a responsibility, as legislators, to improve that by having clarity? The point was made in comments to other members that, as society changes and moves forward, the definitions of men and women — gender identity versus biological sex — have never been defined in law, and we have to go by the assumptions of what that means. A lot of our law is based on assumptions that existed at a point in time when we just did not have those conversations. What are we doing to update that, so that we ensure that we have that clarity? I hear a lot of criticism of people's interpretations, but there is not that much criticism of the legislators, who have the ability to provide that clarity.

I declare an interest: I am in the process of trying to write a piece of equality law. We are down to the wire with that, but we will see how we go in the next while. In the absence of GFS, people such as you, and the general public as well, are in a really difficult position because we just do not have such a law in place. I am keen to hear your thoughts on what we, as legislators, need to be doing to respond to everything that we hear in that space.

Ms McGahey: You are absolutely right: the commission is tasked by a number of different pieces of legislation to provide advice and guidance to the Executive and government. Under article 2 of the Windsor framework, where we identify that there is an issue, we raise that with the Executive, the Northern Ireland Assembly and the UK Government. In response to one of the earlier questions — I cannot remember who asked me the question — I said that we were looking to get clarity and that, if EU law took us in a direction that was away from where we currently are, we would not say, "This must change"; we would say, "This is the situation. This is where we should be going. What do you want to do about it?". Ultimately, it is down to our legislators to make that law. It is the same in Westminster: we make recommendations based on the information that we have gathered and the advice that we have been able to secure about what needs to happen. We have done that for all the statutes under which we have responsibilities when it comes to law reform, where protections needed to be improved, and where there were gaps in our legislation. You have to remember that the legislation and the protections in Northern Ireland are way behind what our colleagues in the rest of the United Kingdom have. In our opinion, Northern Ireland is being disadvantaged in that regard.

Ms Sugden: I agree. I see that through my work on my private Member's Bill, which is trying to bring together the patchwork of equality law that we have here in Northern Ireland. It is unique and has been a challenge.

Do you feel that the Executive, in particular, are hearing that? Are they taking advice on board in respect of what they, as legislators, should be doing, or is that just another symptom of a Government who disagree on a lot of issues, despite governing together?

Ms McGahey: I will make a personal observation, rather than one on behalf of the commission, because this is not something that we have discussed or agreed in any particular way. I said earlier that equality has been politicised over the years. It is not for one community over another. It is not a zero-sum game in which, if one gains something, somebody else has lost. It is for everybody, because there are older people right across our society, and you are not disabled because of your religion or political viewpoint, in the same way that sex is not applicable to just one side of society or the other. We are in the business of promoting equality of opportunity for everyone who lives and works in Northern Ireland.

Ms Sugden: I agree. I am frustrated that the role of the Equality Commission is not being fully utilised by those who commission it, if you like. Even from a Committee perspective, there is more that we need to do to recognise the value of our commissioners and why they were appointed in the first place. It is as much about advising on equality legislation and policy as it is about upholding what currently exists. We are not in a static state; we should always be seeking to improve. The commissioners have a role in advising, but I am not sure that that advice is being heard.

Ms McGahey: Any time that I go to one of the Committees or talk to senior civil servants, I remind them that the commission is the independent adviser in relation to the issue under discussion or consideration. We are not a lobby group or activists, and we do not promote one agenda over another. We look for gaps in legislation in which people are not protected and look to ensure that we have the same rights and protections as citizens in the rest of the United Kingdom.

Ms Sugden: Thank you.

Ms McLaughlin: Good afternoon, everyone, and thank you. You have covered an awful lot of ground, Geraldine. Your briefing provided highlights of the legal uncertainty here in Northern Ireland and outlined the key questions that remain unresolved. The fact that, in the absence of legal clarity, you are not able to give precise or clear guidance at this stage is really important; yet, today, the head of the Civil Service said:

The Northern Ireland Civil Service should be an inclusive employer. In the context that there is no clarity, why would a decision be made that the Northern Ireland Civil Service should not take part in Pride? My concern is this: how can the public institutions ensure that our LGBTQ+ community continues to feel respected, included and protected while the legal questions are still to be resolved? There is such a gap between the two positions, and, given the lack of legal clarity, I cannot understand why such a decision has been made.

Ms McGahey: In fairness, I have not seen the decision issued by the head of the Civil Service and the instructions to staff, so I do not want to comment on that or assume anything.

However, I will say that our LGBT community is still protected under legislation: the Sex Discrimination Order and the gender reassignment legislation. Respect and dignity at work legislation is still in place under the Fair Employment and Treatment (Northern Ireland) Order 1998. No one should be asserting one set of rights over another, because everyone's rights have been hard won and need to be protected. It is about accommodating and treating people with dignity and respect, because, at the end of the day, that is what equality of opportunity is all about. I do not feel that our LGBT community should be disadvantaged in any way; it still has the same legal protections as it did before the For Women Scotland judgement.

It boils down to a piece of legislation — the Equality Act — and the definition of biological sex. In some regards, it makes sense in terms of the administration of that legislation. It all boils down to whether and when a trans person who has a gender recognition certificate — they are not to use single-sex spaces under the terms of the Equality Act. We are trying to seek clarity in relation to here. Diversity and inclusion are for individual employers, and that includes what might be happening in the Civil Service, but we advise them to stay within the requirements of Northern Ireland legislation, because we are very much aware that some organisations champion the Equality Act and other aspects that fall outside Northern Ireland legislation. That is without getting into any specifics.

As to whether or not people can participate in Pride or any other event, I am sure that the head of the Civil Service is allowing people to do that in their own time. They will not be paid to do it, but individuals' rights will still be paramount in that regard. We do not pay people to participate in Pride. We pay to take a stand to fulfil our education and awareness-raising obligations.

Ms McLaughlin: Northern Ireland civil servants

attended Pride under the Civil Service banner. It is a celebration and recognition of those people's value in the Northern Ireland Civil Service. I am confused. Has the head of the Civil Service come to you for advice and guidance on the issue at any stage? She has clearly said in the statement:

I wonder what the legal and case law context is, because there is no clarity. Quite clearly, you have gone to great lengths today to give the formal position, and you are waiting for that clarity and purpose to come forward, so where are we with that?

Ms McGahey: To the best of my knowledge, no one has approached the Equality Commission with regard to that decision. I do not believe that to be the case. However, if it is the case and someone has made contact, none of us here is aware of it. I will come back to you and clarify whether anything is different, but I genuinely believe that there has been no communication.

Ms McLaughlin: That is disturbing on its own. OK. Thank you.

Ms Conlon: I will just add that part of our advice is for individual public authorities to take their own legal advice as well. I assume that the NICS will have done that. However, at this stage, it has not come to the Equality Commission.

Ms McGahey: I am sorry that we have not given you much clarity. However, we really do not have it in that particular instance. I was not even made aware of the decision, the background to it or the press release.

Ms McLaughlin: Thank you

for clarification of the current position. Thanks.

The Chairperson (Ms Bradshaw): Is that you, Sinéad? Yes. Deborah wants in for a quick question at the end.

Mrs Erskine: Yes, very briefly. I want to ask a few questions.

Has the Equality Commission ever engaged with Stonewall?

Ms McGahey: No. Stonewall is an organisation into which you pay to be a member. I have tried to research the advice that is given by Stonewall. However, you cannot get beyond that and into the advice until you pay your money. It is one of those —.

Mrs Erskine: It is stonewalling you. [Laughter.]

Ms McGahey: Your words, not mine. No, we have never really engaged with it at all. We would advise those organisations that do engage with it to make sure that they are dealing with the appropriate legislation and remind them of what Northern Ireland legislation is about, not what is happening elsewhere. There are other organisations apart from Stonewall. One of them — I cannot remember which one it was now — is actually based in Canada. I have seen legislation from Canada being quoted in some of its documents, and thought, "But that is nothing to do with Northern Ireland". My advice to whatever organisation is using that advice is to make sure that it is compliant with Northern Ireland law and that it follows policy here.

Mrs Erskine: You talked about engagement that you have had with organisations and businesses. Have any of them come to you with, I suppose, advice that Stonewall has given them to see what it would look like from your perspective?

Ms McGahey: Not from Stonewall. One organisation approached me — you will appreciate that I cannot name it for confidentiality reasons — but it was not about Stonewall; it was about Diversity Mark. Its concerns focused on the balance of male and female staff within its senior management. Its concerns were that the organisation was quite heavily balanced in favour of females, and it was fearful that it was being asked to further disadvantage males. Now, it was a very general conversation, not a specific written request, so something may have been lost in the translation. However, at least that organisation was trying to ensure that what it was doing, and what it was being advised to do, was in compliance with Northern Ireland law.

Mrs Erskine: OK. Thank you.

The Chairperson (Ms Bradshaw): Thank you. That is everything for today. Thank you very much for your preparation and for coming today. If there is anything that you would like to share with us —. Go ahead, please.

Ms McGahey: May I just add one thing? Louise has passed me a note. It relates to Mr Gaston's question about the Orange Order and Twelfth of July events. She was able to confirm for me that a former chief commissioner did attend Twelfth of July events —

Ms Conlon: In Belfast.

Ms McGahey: — in Belfast.

Ms Conlon: On the invitation of the grand master.

Mr Gaston: And paid to have a stall?

Ms McGahey: I do not know the answer to that bit.

Ms Conlon: I think that, from memory — I have been with the commission for quite a while — he was on the stand and had been invited by the grand master.

The Chairperson (Ms Bradshaw): Do you know what year that was?

Ms Conlon: It was Bob Collins, so it would have been 2008 or 2009 — that sort of time. I am showing my age.

Ms McGahey: It was at least 12 years ago judging by the term of my office and that of my predecessor.

Mr Gaston: You are happy to attend future events.

Ms McGahey: I am. However, I would seek assurances because, as you will be aware, there has been some really negative media coverage and criticisms of the commission and where we stand when it comes to being activists etc. One senior politician said that the commission and I had lost the confidence of the Protestant/unionist/loyalist (PUL) community in Northern Ireland, which I found really disheartening. I have to say that I felt really sore about it. I have since spoken to that politician about it. I would look for some degree of assurance that it would be a meaningful engagement with people who would come. If you are going to get me invited to a Twelfth of July event, come along with me.

The Chairperson (Ms Bradshaw): Phillip wants to add to that.

Mr Brett: Thank you, Chair. Listen, Geraldine: I have disagreed with many of the activities that the Equality Commission has engaged in. However, it is important to recognise that — you will know the case — your office has been very supportive of a PUL individual and ensured that he got the outcome that he deserved. I want to put on record that, whilst I have disagreed with many of the actions that you have taken, in my direct interaction with the commission, you have been more than fair, and you ensured that a working-class Protestant got the justice that he deserved.

Ms McGahey: I will make one final point to reassure you that our commission and board are truly representative of Northern Ireland society in terms of all its markers and identifiers. We are appointed by the Secretary of State. The guidance that the Northern Ireland Office provides to him or her will be to make sure that we are truly reflective. We go out of our way to try to counter the narrative that we are for only one side of the community. It is actually the PUL community that I have concerns about as demographics change. I am on the record with your party as saying that, no, we would not be in favour of changes to the Fair Employment and Treatment Order, because, if the PUL community continues to stay stationary and the Catholic/republican/nationalist community increases, it will need protections just as the other side needed protections back in 1998.

The Chairperson (Ms Bradshaw): I agree with that.

Ms McGahey: My whole board, staff officers and I go out of our way to make sure that we are truly acting for everyone in Northern Ireland society.

The Chairperson (Ms Bradshaw): OK. Thank you. I advise that that concludes Hansard coverage of the session. Thank you so much.