The Court of Justice of the European Union (CJEU) last week ruled in a case concerning a Bulgarian trans woman living in Italy that EU member states cannot refuse legal gender recognition to trans citizens who have exercised their right to free movement.

The outcome in what is known as the Shipova case has been welcomed by LGBT+ rights campaigners – and could help to clarify questions around transgender rights in Northern Ireland, where EU law continues to apply under post-Brexit arrangements.

The UK Supreme Court unanimously ruled in April 2025 that the word “woman” in the Equality Act 2010, which applies in Great Britain but not in Northern Ireland, refers to biological sex and does not include transgender women, regardless of whether or not they hold a gender recognition certificate.

The FWS ruling has led to significant upheaval in Great Britain, with the British equality regulator issuing and then withdrawing interim guidance after the ruling which told businesses that trans people should not be allowed to use bathrooms or changing rooms according to their gender identity.

The Equality Commission for Northern Ireland has asked the High Court in Belfast to clarify what the ruling means for Northern Ireland in light of its unique post-Brexit arrangements.

Under Article 2 of the post-Brexit Windsor Framework, “the key EU directives on sex discrimination remain in place in the law of Northern Ireland after Brexit, with the only change being that the Northern Ireland courts have to apply this law without direct reference to the CJEU”, Professor Colin Murray of Newcastle Law School told ILN.

Professor Murray recently authored a paper on the increasing divergence of equality law in Northern Ireland and Great Britain for the Discrimination Law Association’s journal, Briefings.

“It is settled [CJEU] jurisprudence going back to the 1990s that a trans person is to be treated, for most purposes, as having their acquired gender for the purposes of this discrimination law,” he said.

“Now the ‘most purposes’ might make that appear fuzzy, but really it is to allow for circumstances in which the discrimination in question is because the person is trans.”

He continued: “The new Shipova judgment double underlines this. Paragraph 54 makes it clear that to differentiate on the basis of biological sex – as the UKSC did in FWS – is not acceptable under EU law.”

Paragraph 54 of the Shipova judgment states:

The ruling “also asserts, in Paragraph 58, that the courts must follow CJEU case law, not superior national court case law, where the two conflict”, Professor Murray added.

“This is still applicable to the Northern Ireland courts after Brexit, because of the Windsor Framework.

“Paragraph 54 is also a rebuke to the UKSC in FWS – when the Equality Act 2010 was laid down, the UK was part of the EU and UK protections against discrimination had to work in line with EU law, a factor in statutory interpretation that the UKSC skips over in FWS.”