Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Challenge to the interim guidance issued by the Commission for Equality and Human Rights was rejected.
The claimants (the Good Law Project and three anonymised individuals) challenged the legality of the guidance from the defendant. The guidance was issued following the For Women Scotland v Scottish Ministers where the Supreme Court held that sex, in the context of the Equality Act 2010, referred to biological sex.
The gravamen of the case related to the guidance following the case which stated that the judgment had implications for organisations including, inter alia, workplaces. It stated that in workplaces it is compulsory to provide sufficient single-sex toilets as well as changing and wishing facilities where they are needed. It went onto to say that trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities as it would mean that they are no longer single sex facilities.
The High Court found that the Good Law Project did not have standing to bring the case and went onto reject the arguments made by the individual claimants. They found that the interim advice was not rushed and not incorrect legally. There was no requirement to give a comprehensive statement in the guidance. The judgment did find that there was scope for a strong argument that allowing a trans woman to use a female toilet did not amount to discrimination against biological men but it did not amount to a challengeable ground in relation to the guidance that had been issued. There was a challenge based upon Article 8 of the ECHR, but this was not sustained with the judgment stating that there was no issue in providing a gender-neutral space which could be used by all individuals including those who have undergone gender reassignment.
This case does not provide any change to the position that was put in place following the For Women Scotland and this challenge related more to the extent to which the Commission for Equality and Human Rights can issue interim guidance and the extent of that guidance. The Good Law Project has indicated that they will appeal the judgment so it is likely that this case will come round again soon.
You can read the case in full here.
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