This is part of our Sex in the Supreme Court and Protect sport for women and girls campaigns |
EHRC consultation: sport
This is the third in a series of posts focusing in detail on individual parts of the Equality and Human Rights Commission’s draft code of practice for service providers, associations and public bodies (read our full response to the consultation).
Section 195 of the Equality Act concerns sport. This is covered in Chapter 13 of the Code of Practice. The Equality Act says at S195(1):
“A person does not contravene this Act, so far as relating to sex, only by doing anything in relation to the participation of another as a competitor in a gender-affected activity.”
In other words, if a sport is “gender-affected” (that is, “a sport, game or other activity of a competitive nature in which the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex”) then restricting participation based on sex is lawful.
Sport is almost universally organised by sex. Section 195 makes that lawful. This is not restricted to single-sex events. It also applies to mixed events with sex-based rules, such as mixed doubles in racquet sports and mixed pairs in figure skating, mixed-sex team sports that have rules requiring a minimum number of women in the team, and sex-based record-keeping in parallel sports such as fell running.
The draft guidance says: “the law on the interpretation of s.195(1) is not settled and there is therefore uncertainty as to how this provision applies.”
This is baseless. In fact s.195(1) is quite clear. The idea that the law is “not settled” seems to be based on the EHRC’s previous wrong interpretation that it may be gender-reassignment discrimination to run a female-only team because it excludes men with the protected characteristic of gender reassignment.
The EHRC continues to advance this approach in the draft guidance. It says:
13.1.6 In the context of a gender-affected activity the Act allows trans people to be excluded from an event or treated differently, which would otherwise constitute unlawful gender reassignment discrimination, when necessary for reasons of safety or fair competition. If it is not necessary for these reasons, it is likely to be unlawful to exclude trans people.
13.1.7 Consequently, if a person is organising single-sex or separate-sex events for men and women in a gender-affected activity, they should consider their approach to trans competitors’ access to the service (s.19 and s.195(2)).
This makes no sense in light of the Supreme Court’s ruling in For Women Scotland, which says that “trans women” are men and that the provisions on sport are plainly predicated on biological sex.
As the Supreme Court said at paragraph 236:
“a women’s boxing competition organiser could refuse to admit all men, including trans women regardless of their GRC status. This would be covered by the sex discrimination exception in section 195(1).”
The code should be rewritten based on a clear understanding of the protected characteristic of sex, which aligns with the physical characteristics of the bodies that play sport. All men are male (including those who identify as transwomen) and all women are female (including those who identify as transmen), and these are biological (physiological) characteristics.
Section 195(2) of the Equality Act says:
(2) A person does not contravene section 29, 33, 34 or 35, so far as relating to gender reassignment, only by doing anything in relation to the participation of a transsexual person as a competitor in a gender-affected activity if it is necessary to do so to secure in relation to the activity—
a) fair competition, or
b) the safety of competitors.
But this does not mean that a person organising a sporting event for women “should consider their approach to trans competitors’ access to the service”, as the EHRC draft code says.
If the organiser excludes a biological female who has taken testosterone from the female division, this would be permitted by s.195(2). As the Supreme Court says:
“It is here that the gender reassignment exception would be available to ensure that the exclusion is not unlawful, whether as direct or indirect gender reassignment discrimination.”
Large parts of the section on sport are misguided, and overly complex for a topic rendered quite simple by the Supreme Court’s clarification of the Equality Act.
Someone organising a female-only sport competition is not “making a decision” to restrict the participation of transgender males on the grounds of gender reassignment. They are simply organising a sports competition which has a qualifying condition that does not include any males.
The guidance says at 13.1.18:
“Given the physiological differences between men and women, it will often be necessary for organisations to develop general policies to guide and inform their decision making in this area.”
This disregards the Supreme Court’s conclusion that it is the physiological differences between men and women that make them men and women, and which in turn create the gateway conditions for establishing sex-based rules in so-called “gender-affected sports”.
The fact is, the mere existence of a male and female category shows that most sporting bodies have already done this, and have been doing so for many years. As the Supreme Court notes, there is not necessarily any physiological difference between “trans women” and other men. The starting point for any policy related to trans individuals in sport must therefore be that they can compete only in the sex category in which they are entitled to compete.
Testosterone suppression?
The EHRC guidance suggests that organisations should have policies to consider allowing men to play in women’s sports based on factors including:
“whether such competitive advantage can be sufficiently reduced through medical intervention, such as drugs to reduce levels of testosterone, to make the competition fair.”
These are interventions with serious health consequences, up to and including sterilisation. Neither the Equality Act nor the previous guidance mention testosterone suppression by medical or surgical means as a gateway condition for sport. This recommendation is outside the scope of the Equality Act and should be removed.
As the Supreme Court noted, Parliament has decided that the criteria for having the protected characteristic of gender reassignment do not include hormone treatment or surgery. The European Court of Human Rights concluded in the case of AP Garcon and Nicot v France that a law requiring treatment that amounted to sterilisation in order to obtain administrative gender recognition had been a violation of Article 8 (right to respect for private life). Requiring treatment that is likely to impair sexual function and fertility, and which might lead to sterilisation, has major human-rights implications.
To make such treatment a condition of competing in a sport competition is unlikely to be proportionate. In any case, the EHRC is proposing it as a condition to enable certain men to access the category designated for women; there is no condition which can legitimise this.
There is already a sport category (the male – or open – category) in which men (including men who identify as “trans women”) are qualified to compete, and where the Equality Act provides them with protection against discrimination.
They are not excluded from sport. They are included in the male category.