Dealing with gender-based discrimination: a call for alternatives

Gender-based discrimination is unfortunately still a daily occurrence in Northern Ireland. On average, more than 20% of complaints of discrimination made to the Equality Commission for Northern Ireland relate to sex discrimination.[1] This kind of discrimination can encompass a range of issues from pay inequalities, differential treatment by employers, differential treatment by service providers, to sexual harassment. This kind of unfair treatment of people because of their gender, and indeed other characteristics that co-exist and intersect with gender like sexual orientation, race, disability, or religious belief, is well understood as a gender-based violence issue. For example, the Istanbul Convention recognises ‘violence against women’ as a form of discrimination and requires parties to the Convention to take measures to prevent discrimination against women.

Alongside extensive international obligations to prevent discrimination against women, there are additional obligations on both the UK and Irish governments as well as the Northern Ireland Assembly to prevent discrimination against women and promote gender equality. These obligations are a central part of Northern Ireland’s peace arrangements. Importantly, the Northern Ireland Act 1998 (s 75) created a public sector equality duty in Northern Ireland. In other words, public authorities in Northern Ireland must pay ‘due regard’ to the need to promote equality of opportunity in carrying out their functions. This often takes the form of carrying out ‘Equality Impact Assessments’ of policies and decisions. The Equality Commission for Northern Ireland is tasked with the oversight and enforcement of this duty.

A suite of anti-discrimination laws prohibits discrimination on grounds of gender, race, sexual orientation, age, disability, and religious and political belief in Northern Ireland. These laws apply in a number of contexts in different ways including equal pay, discrimination in employment, in access to goods, facilities, and services, and education. Developments in EU anti-discrimination law have greatly influenced the development of that body of law. Arrangements following the UK’s withdrawal from the EU require the UK to ensure that no diminution of equality protections must result from ‘Brexit’ and that anti-discrimination law in Northern Ireland must keep pace with any future developments at the EU level. Under Article 2 of the Windsor Framework, the Equality Commission for Northern Ireland and Northern Ireland Human Rights Commission now have statutory duties to monitor, advise, report on, and enforce adherence to those requirements.

In Northern Ireland, there seems to be extensive formal protection from discrimination in law across a number of grounds. In practice, however, you might find a different picture. Empirical data collected as part of my PhD research through 28 semi-structured interviews with various key stakeholders, including people who have experienced gender-based discrimination, builds on existing research on anti-discrimination law in Northern Ireland. Emerging findings – in the early stages of analysis - highlight problems with how the law prevents or addresses gender-based discrimination.

As above, anti-discrimination law in Northern Ireland takes great influence from EU anti-discrimination law and is underpinned by commitments by the UK government and local institutions to ensure the promotion of equality in Northern Ireland. Anti-discrimination law and policy has developed in incremental, piecemeal ways, resulting in a body of law that is often very complex, opaque, and difficult to understand. That is, difficult to understand for policymakers, lawyers, and rights-holders alike. This is probably the most glaring and oft-cited problem with how the law addresses discrimination in Northern Ireland. Stagnation in the development of equality and anti-discrimination law against the backdrop of political dysfunction leaves Northern Ireland to fall behind developments in neighbouring jurisdictions in Great Britain and the Republic of Ireland.

A fuller picture will become clear as this PhD research progresses, but preliminary findings point to potential issues with access to justice in this area (which may have disproportionate gendered impacts), issues with resourcing of both institutional and civil society actors working on these issues, and finding ways to combat cultural misogyny and underlying structural inequalities. 

Addressing all forms of discrimination against women is vital not only in ending gender-based violence, but also in transforming Northern Ireland’s society as we emerge from conflict. We find ourselves at a time of opportunity for thinking of practical solutions for better addressing this kind of discrimination, including law reform. This might also be an opportunity for starting imaginative conversations about addressing gender inequalities in Northern Ireland.  Such conversations could create space for considering broader changes across society that could contribute to addressing gender-based discrimination, and thus gender-based violence.

About the author - Aislinn Fanning is a PhD student based in the School of Law at Queen’s University Belfast. Her PhD research uses a queer feminist approach to consider how well anti-discrimination law addresses discrimination based on gender and sexuality in post-1998 Northern Ireland, as a society transitioning out of conflict. The research aims to suggest both practical and imaginative solutions for dealing with this kind of discrimination.

Contact: afanning02@qub.ac.uk

Twitter: @aislinnnfanning

Useful resources:

Debbie Kohner, ‘The Equality Framework in Northern Ireland’ in Brice Dickson and Brian Gormally (eds), Human Rights in Northern Ireland: The CAJ Handbook (Hart 2015).

Beverley Jones and Joanne White, ‘Sex Discrimination’ in Brice Dickson and Brian Gormally (eds), Human Rights in Northern Ireland: The CAJ Handbook (Hart 2015).

Aoife O’Donoghue, ‘Non-Discrimination: Article 2 in Context’ in Federico Fabbrini (ed), The Law & Politics of Brexit Part IV (Oxford University Press 2022).

Dagmar Schiek and Aislinn Fanning, ‘Equality Law after Brexit - Stunted or Reverse Repatriation?’ in Adam Lazowski and Adam Cygan (eds), Research Handbook on the Legal Aspects of Brexit (Edward Elgar Publishing 2022).

Equality Commission for Northern Ireland (2016) Gender Equality: Policy Priorities and Recommendations available at: <https://www.equalityni.org/ECNI/media/ECNI/Publications/Delivering%20Equality/GenderPolicyPriorities-Full.pdf?ext=.pdf>.

Rachel Powell (2020) Gender Equality in Northern Ireland: where are we in 2020? < https://wrda.net/2020/02/07/gender-inequality-in-northern-ireland-where-are-we-in-2020/>.

[1] Anne McKernan, Pregnancy and maternity discrimination remains an issue for working mothers (ECNI 2019) < https://www.equalityni.org/Blog/Articles/August-2019/Pregnancy-and-maternity-discrimination-remains-an> accessed 27 November 2023.