How UK Athletics was misled
UK Athletics has put out a statement saying – with regret – that it cannot lawfully exclude trans-identifying men who have GRCs from participation in women’s events.
The material part of the statement says:
“10. There is a duty in s.9(1) of the Gender Recognition Act 2004 to treat those trans women with a Gender Recognition Certificate as female for all purposes. Although the GRA 2004 originally contained (in s.19) a wide exemption for the organisation of sporting events, that exemption was repealed with effect from 1 October 2010. At the same time, a ‘sporting exemption’ provision in s.195 of the EA 2010 was introduced.
11. UK Athletics does not believe that the ‘sporting exemption’ in s.195 of the EA 2010 applies to the Gender Recognition Act 2004 and so, at present, we could not lawfully exclude trans women in possession of a Gender Recognition Certificate from the female category. That is because:
a. The wording of the exemption in s.195 of the EA 2010 refers consistently to “this Act” (see subsections (1), (5) and (7)) or to specific provisions of the EA 2010 (see subsection (2)), and so does not extend the exemption to the Gender Recognition Act 2004.
b. The Gender Recognition Act 2004 used to contain a bespoke sporting exemption, but Parliament repealed it. EA 2010 s.195 does not indicate any intention to alter the operation of s.9 Gender Recognition Act 2004. If that was the intention, subsection (1) could be expected to read “A person does not contravene this Act or the Gender Recognition Act 2004”. That would extend the exemption to s.9(3) Gender Recognition Act 2004. But s.195 of the EA 2010 does not do that.
12. The advice received by UK Athletics appears to be consistent with the recent Opinion of Lady Haldane in the Outer House, Court of Session in the Petition of For Women Scotland Limited. The Opinion is consistent with the analysis that the right in s.9 Gender Recognition Act 2004 cannot be read as impliedly subject to restrictions or limitations contained in the EA 2010 unless that intention is made clear in the EA 2010 (which it is not).”
This fundamentally misunderstands the interaction between the Equality Act and the Gender Recognition Act.
The Gender Recognition Act changes the holder’s sex for legal purposes. Lady Haldane’s judgment tells us that the Equality Act is one of those purposes.
The Equality Act prohibits discrimination on grounds of (a) sex and (b) gender reassignment (among other things), subject to various exceptions. The exceptions in relation to sports are at section 195. No question of a “contravention” of the Gender Recognition Act arises, because the Gender Recognition Act does not prohibit discrimination; it simply deems some men to be women, and some women to be men. Prohibiting discrimination is the job of the Equality Act.
Section 195(1) of the Equality Act permits discrimination on grounds of sex in relation to participation as a competitor in any “gender-affected activity”.
Section 195(2) permits discrimination on grounds of gender reassignment in relation to who can compete in a “gender-affected activity” if it is “necessary” to do so (a) for fair competition, or (b) for the safety of competitors.
Section 195(3) provides that a “gender-affected activity” is any “sport, game or other activity of a competitive nature in circumstances in which the physical strength, stamina or physique of the average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity”.
How do these provisions operate in relation to the exclusion of trans-identified males from women’s sports?
Section 195(1) permits the exclusion of any man, on the basis of sex, from a women’s competition in a “gender-affected activity”, even if he identifies as a woman, unless he holds a Gender Recognition Certificate.
A man who does hold a Gender Recognition Certificate declaring him to be a woman cannot be excluded from such a competition on the basis that he is a man, because the law now deems him to be a woman. But it also deems him to be a transsexual woman, and as such he can still be excluded under section 195(2) on grounds of gender reassignment, provided that it is necessary to do so for fair competition or for the safety of competitors.
In other words, provisions restricting the participation of trans-identified males (“trans women”) in women’s sports are lawful, provided one or other of those two criteria is satisfied.
UK Athletics clearly understands the existing scientific evidence that demonstrates that it is necessary for fair competition to exclude men who identify as women from women’s athletics, regardless of hormonal or medical interventions undertaken by those men. It certainly can rely on the exception in s.195(2) Equality Act, and there is no basis in law for suggesting that to do so somehow contravenes the Gender Recognition Act.
As the Explanatory Note to the Equality Act says:
“This section allows separate sporting competitions to continue to be organised for men and women where physical strength, stamina or physique are major factors in determining success or failure, and in which one sex is generally at a disadvantage in comparison with the other. It also makes it lawful to restrict participation of transsexual people in such competitions if this is necessary to uphold fair or safe competition, but not otherwise.”
The Equality Act and the Gender Recognition Act together make an intricate scheme: neither overrides the other. When the consolidating Equality Act was passed in 2010, the specific exception for sport was repealed from the Gender Recognition Act because it had found a more logical home in the Equality Act.
The Equality and Human Rights commission has released a statement making the same points, and expressing disappointment that inaccurate advice was publicised by UK Athletics.