Inclusion or fairness: new guidance for sport in the UK

Sex Matters response to the Sports Council Equality Group Guidance on Transgender Inclusion.

On 30th September, the Sports Council Equality Group (SCEG), which is composed of members of the five major sports councils within the United Kingdom, published new guidance for UK National Governing Bodies and Sports Governing Bodies. The guidance is intended to support them in regulating the inclusion of transgender athletes in sex-segregated sports categories.

The new guidance delivers a consistent message throughout: in sex-affected sports Governing Bodies cannot secure both transgender inclusion and fairness for female athletes within the female category.

Sex-affected sports are those where male strength, stamina or physique provides competitive advantages or presents safety risks. The Equality Act 2010 Section 195 calls them “gender affected sports” and allows for sex-based rules.

Evidence-based analysis

The review references up-to-date scientific data, including a study published by Sex Matters director Dr Emma Hilton, on the physiology and performance of transgender males suppressing testosterone (i.e. those who are covered by Olympic regulations on entry to the female category).

Hilton, E.N., Lundberg, T.R. Transgender Women in the Female Category of Sport: Perspectives on Testosterone Suppression and Performance Advantage. Sports Med 51, 199–214 (2021) Harper, J., O’Donnell, E., Khorashad, B.S., McDermott, H., Witcomb, G.L. How does hormone transition in transgender women change body composition, muscle strength and haemoglobin? Systematic review with a focus on the implications for sport participation Roberts, T.A., Smalley, J., Ahrendt, D. Effect of gender affirming hormones on athletic performance in transwomen and transmen: implications for sporting organisations and legislators British Journal of Sports Medicine 2021;55:577-583.

A clear choice: transgender inclusion for males or fairness for women

The guidance states that when designing sports-specific guidelines, the responsible bodies will have to choose between inclusion and fairness.

There are wider and narrow meanings of inclusion, and the report makes it clear that it is concerned with a particular sort of inclusion: the inclusion of transgender males in the female category, either by self-ID or by testosterone reduction.

The general approach to date has been to pretend that fairness can be “balanced” against inclusion. Analysis by Dr Jon Pike has shown that this “balancing” view is an error – it is impossible to balance fairness with this kind of inclusion. The policy choice is one of priorities.

The SCEG authors agreed with this:

“It is highly likely that for many sports, transgender inclusion, fairness and safety cannot co-exist in a single competition model. Each NGB will need to define the priority for their sport, and whether the current format of their sport will prioritise either inclusion or fairness (and safety if relevant). This is a choice.”

SCEG report, 2021.

Governing bodies have decisions to make

Governing bodies can no longer ignore the fact that inclusion of transgender males (“transwomen”) who, even with testosterone suppression carry male advantage, creates unfairness for female athletes in the female category.

Unless they can make a case that their particular sport is not sex-affected, they will be forced to acknowledge that “trans inclusive” rules are exclusionary (and possibly dangerous) for female athletes.

The SCEG guidance affirms that sex categories are “the most useful and functional division relative to sporting performance” and that competitive fairness cannot be reconciled with self-ID by gender identity, nor guaranteed under current testosterone eligibility regulations.

It makes clear that requests for information regarding athletes’ biological sex are legal, and that failure to provide this information “would mean that person may not be able to compete in the category of their choice”.

Individualised case-by-case assessment: not fair or practical, likely to be unlawful

Addressing a common proposal for inclusion on a case-by-case, rather than sports-level, basis, the SCEG guidance notes the lack of scientific rationale and problems with ensuring maximum effort during testing. SCEG argues that case-by-case analysis may contravene the provisions of the Equality Act 2010. It may be based on criteria which cannot be lawfully justified. Some transgender people will be included and some excluded because of criteria beyond their own control.

Issues with stigmatising subsets of transwomen and the inherently sexist concept of “sufficient femininity” have been raised previously by Sex Matters in our responses to sports policy consultations.

Three conceptual options

SCEG offers three options; prioritisation of inclusion, prioritisation of fairness or establishment of a universal admission category.

Governing bodies that choose to prioritise transgender inclusion over fairness (and possibly safety) are encouraged to institute testosterone limits (although SCEG acknowledges that testosterone suppression does little to remove male performance advantage).

Those choosing to prioritise fairness for female athletes are encouraged, if not already operating as such, to offer “female” (protected) and “open” categories. This proposal has the advantage that it protects female sport from the unfairness that arises from male advantage, but it does not require anyone to assert a gender identity with which they feel uncomfortable.

Sports wishing to offer a universal admission option are encouraged to be creative in designing novel or modifying existing gameplay to provide safe and fair opportunities regardless of sex (for example, instituting a handicap system or offering non-contact options within contact sports).

Along with the guidance the SCEG has published an Equality Impact Assessment. It states that while the guidance could have a positive impact on inclusion of people with the protected characteristic of gender reassignment in general, some males with this characteristic may be negatively affected by policies and procedures that exclude them from competitions limited to female competitors. This can be justified in line with the exceptions provided by the Equality Act. On the protected characteristic of sex, it states that if governing bodies develop policies and procedures that favour transgender inclusion over fairness and safety for female competitors this would be a negative impact on some women competing in sport, and that some women will self-exclude. There are no specific Equality Act exceptions that would provide justification for this.

Athletes were afraid to speak

The consultation process undertaken by SCEG was extensive, seeking views from hundreds of people with sports experience, including transgender people.

The project report describes two groups of interviewees with different value systems:

• Those who assert that inclusion is more important than fairness deficits or safety risks; and
• Those who value the integrity of sport itself and for whom fair competition is a basic requirement
  to which inclusion (on the basis of gender identity) is secondary.

Sports professionals were overwhelmingly in the second group.

The interviewee reports demonstrate widespread silencing of athletes, administrators and coaches who, on condition of anonymity, revealed threats to their selection, funding streams, personal career progression and accreditation with external agencies if they raised questions, expressed dissent or did not “toe a line” on existing inclusion guidance now described by SCEG as “out of date and no longer fit for purpose”.

SCEG underlines that stakeholder consultation is crucial for governing bodies developing their own policies. A recent study has shown that elite female athletes feel they have been excluded from conversations about inclusion of transgender males in female categories. The project report notes that Black, Asian and minority ethnic women feel particularly strongly that “success in sport was perhaps a key opportunity to achieve in a Britain where they were discriminated against because of both their sex and their race”.

Sex Matters says:

We welcome the SCEG guidance. Sex matters in sport, and both evidence and women’s voices must be heard.

On a topic where the International Olympic Committee is floundering, and where few international sporting federations are willing to tackle this issue head-on, the new SCEG guidelines are refreshingly clear about the impact of inclusion of transgender males in female sports on fairness for female athletes.

We hope this guidance encourages governing bodies to consider deeply how inclusion policies harm women, and to preserve the integrity of sport by prioritising fairness within a protected female category.

The SCEG offers three conceptual options, and the Equality Act is not prescriptive about which sports must offer a female protected category. However, as the Equality Impact Assessment notes, in sex-affected sports, policies and procedures that remove the protected female category create a detriment to women. Organisations such as associations, service providers or employers will be liable for indirect sex discrimination if they cannot provide objective justification for these policies.

Any sporting body or organisation that adopts a policy that puts trans inclusion over safety and fairness for women should conduct its own equality impact assessment and be prepared for legal challenge on this basis. Insurers should also take this account.

The SCEG’s balanced approach and its conclusion that categorisation by sex is lawful, and that it is therefore appropriate to request people to declare their sex in order to take part in activities where sex matters and that individualised “case-by-case” assessment is neither practical nor fair, are also likely to be relevant to other situations and exceptions to the Equality Act.

By Dr Emma Hilton, Dr Jon Pike and Maya Forstater