The legal status of women-only sport
British law is on our side. The Gender Recognition Act says that a person who gets a gender-recognition certificate (GRC) becomes their acquired gender “for all purposes” – though it also states exceptions. There is legal uncertainty about how this interacts with the Equality Act. This will be tested in the UK Supreme Court in the For Women Scotland case being heard on 26th and 27th November 2024.
There is no ambiguity, however, about the lawfulness of women’s sport. Whatever the outcome of the case it is clear that female-only competition is lawful. The Equality Act 2010, section 195 says that it is permissible to discriminate by sex in a sport or game 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. It also makes specific provision to allow gender-reassignment discrimination wherever it is necessary to secure fair competition or the safety of competitors.
Any sport that runs separate competitive categories for men and women, or for boys and girls, is relying on s.195. There are similar permissions for age categories and for including and excluding people on the basis of nationality or place of origin (in national sports teams).
Whatever the Supreme Court rules in the For Women Scotland case, both sex discrimination and gender-reassignment discrimination are clearly lawful in competitive sport wherever allowing men to compete against women would be unfair or unsafe. It’s useful to know that the protected characteristic of gender reassignment covers both those with a GRC and those who are “proposing to undergo, undergoing or having undergone a process to reassign [their] sex”.
The Sports Councils Equality Group provides a legal briefing to national governing bodies that makes the position clear. We believe that the legal briefing should be made widely available but the Sports Councils Equality Group disagrees, declining to share it or publish it on its website. We obtained it through a lengthy process citing freedom of information. It can be downloaded and shared with people in sport who seem unsure what the law permits.
There is no provision in the law that requires an individualised case-by-case assessment of whether to exclude a particular male athlete from a “female-only” category. Straightforward rules can be applied. Nor does the law support the idea that sports are sex-affected a lot or only a little. Explaining s.195, the Sports Councils legal briefing says:
“Thus, for the exception to apply, there is a need to consider average persons; not individuals. This is not the average of the person who participates in the sport but on average generally, between the sexes.”
Nor is there anything about what level of sport is being played – for example, there is no basis to claim that s.195 applies to professional cricketers but not amateurs.
If a sport is sex-affected then it follows that it is not fair (and may not be safe) for men and women to compete against each other.
Different, but still lawful, for non-competitive sport
Single-sex swimming sessions, recreational bike rides, gym classes and so on are not covered by s.195 as they are not competitive. But there are other exceptions that permit single-sex services and associations. However, this is where the law is confusing and messy. It may be clarified by the For Women Scotland case and by other cases such as those of the Darlington nurses and other workplace changing-room cases, or by the “Sarah Surviving” case concerning a rape-counselling service.
Many clubs and service providers are nervous about providing clear female-only recreational sports and the associated changing facilities, and are either making everything mixed sex, or else providing someone they call “female only” but operating it on the basis of gender self-ID.
How did we get here?
In 2013 the UK Sports Councils Equality Group issued guidance telling sports bodies to permit trans-identifying males in women’s sport if they lowered their testosterone.
But this approach was not supported by scientific evidence. It has become increasingly clear that lowering testosterone does not remove male advantage.
In 2021 the group therefore issued new guidance, which said that permitting males into women’s categories could not be balanced with fairness for women or, in some sports, with women’s safety. But the damage was done. Almost without exception sports had adopted policies notionally requiring testosterone suppression, but in most cases relying on self-declaration.
Worse was that many consulted trans lobby groups to create policies that made all participation and access to changing facilities also on the basis of self-declared “gender”, usually with the proviso that no-one should question someone’s claimed gender identity. These groups have successfully persuaded sports bodies that it is decent, reasonable and even necessary to accept that a trans-identifying person’s gender identity overrides their actual sex. There is a widespread belief that this is trans-identifying people’s legal right – many sports policies say so, incorrectly. This has resulted in women’s facilities and women-only sessions being open to any man who walks in. If he claims a trans identity then whoever challenges him will be seen as the one at fault. This is how the FA came to suspend a 17-year-old female player who questioned the presence of a man on the pitch.
The Sports Councils legal briefing rejects the idea that there is an obligation to accept people’s claimed sex without verification, or that their gender identity must be accepted as a substitute. It says:
“Very often, ‘human rights’ are cited by people in support of arguments, including, for example, respect for private life (article 8). This can tend to be presented as if the ‘human right’ is an absolute and automatically outweighs all other rights or interests. Such a position is not correct and is often unhelpful. Almost all human rights are not ‘absolute’. Most expressed human rights are, in law, either limited, or qualified, in some respect.
“Where a person wishes to participate in a sport, but refuses to disclose information as to their eligibility to participate (where they are otherwise obliged to), then they are not meeting the terms of participation and argument about human rights and privacy is unlikely to be correct.”
A tendency to compromise
Since the publication of the revised Sports Councils Equality Group guidance in 2021, persistent campaigning has led to some sports governing bodies restoring the protected female category. This is usually based on birth sex, though some exclude based on having gone through male puberty instead. When UK Athletics hesitated over whether GRC-holders were different, the Equality and Human Rights Commission made an unequivocal statement confirming that female-only based on birth sex was lawful – and not affected by the For Women Scotland case.
But emotional blackmail is ever-present. In rugby and netball, for example, men with a transgender identity have declared their access to women’s teams to be “life-saving”. Rugby made the policy change nonetheless, on safety grounds. The threatened legal challenges did not materialise. In netball, UK policy-makers continue to centre men who claim to be women, despite World Netball having protected the women’s game.
Sports governing bodies that realise their transgender-inclusion policies were a mistake are often reluctant to rectify the error in full. Rather than recognise that a clear female category is legitimate and necessary for participation as well as competition, some policy reviews have approached it as an issue of competing demands between two groups, for which compromise would be the appropriate solution. The England and Wales Cricket Board has a two-tier policy, prioritising fairness only for the top two levels of women’s cricket, with male inclusion everywhere else. Scottish Swimming is one of several promoting both “female-only” competition and changing rooms on the basis of self-identified gender identity.
Even when policies are corrected, there is still the problem of making them stick. In UK athletics, men are still registering online as women, turning up and taking prizes. Most race organisers will amend this if it is reported, but it is an ongoing problem. Recreational running, led by Parkrun in the UK, claims that as its events are not races it is more inclusive to allow men to register as women, despite the fact that Parkrun issues results ranked by sex. In cycling, which some female cyclists report is extremely sexist, many race organisers are simply ignoring British Cycling’s amended policy, making up their own rules and allowing trans-identifying men to compete in women’s categories.
What next?
For competitive sport, two important test cases are going through the courts, both in the game of pool. Cue sports are precision sports which offer separate women’s tournaments. In August 2023, three event organisers adopted a policy restricting women’s events to those born female, relying on s.195 to justify this legally. A trans-identifying male threatened to sue for discrimination, and two of the organising bodies quickly backed down. Those two are now being sued for discrimination by a group of female players, while the one organiser that stuck to its female-only policy is defending itself against the original legal challenge by the trans player. In both cases, the key issue is whether pool is “gender-affected”. Expert evidence will be used to make a ruling on this.
For non-competitive participation and changing rooms, other legal challenges or stronger guidance from the EHRC may be needed. Local authorities and other public bodies that fund sport and leisure facilities should pay attention to the public-sector equality duty and how their policies impact women and girls, including specific groups such as Muslim women. The Charity Commission could also take action where charities are involved. As long as these public bodies continue to support ambiguity, it will take brave claimants coming forward to challenge discriminatory policies before women and girls can be confident that facilities and activities advertised as “women-only” will in fact be male-free.
The problem of compliance is largely a social one. Encouraged by lobby groups, some people think it is deeply offensive, perhaps even unlawful, to recognise someone’s sex if they don’t want it recognised. The idea that it is kind to affirm a cross-sex identity has taken root, with no corresponding thought for the unkindness this inflicts on women and girls who lose their privacy and peace of mind. As long as this is the case, some men will continue to push the boundaries. The solution is both legal clarification and a reassertion of the social norms concerning single-sex provision. Clearer systems and standards for data recording will also help, avoiding confusion and moving the argument from individual cases to principles. We need to restore the understanding that the decent thing is to respect boundaries and fairness.
The problems in football
The Football Association, which governs English football, allows men who identify as women into women’s teams if they demonstrate that they have suppressed their testosterone. But suppressing testosterone has no impact on a man’s size and build, and very little effect on his speed or strength. The result is that women facing such players often find they cannot compete and are fearful of injury. At least 72 male players have been approved by the FA, each one affecting dozens of women in their league.
The FA has reviewed its policy but not yet made any changes. Reports of problems are becoming more frequent. A year ago, one male player caused the temporary collapse of a whole women’s league in Yorkshire. Players who ask questions about fairness or safety may find themselves disciplined by the FA, as in the recent case of the 17-year-old who was suspended for doing so. This means no-one can challenge the right of a male player to be in a women’s match.
That case has been raised in the House of Lords and has led to a demonstration at an England men’s match at Wembley. So far the FA’s response is simply to say it is a complex issue. The FA policy is in effect a case-by-case approach to individuals who apply for approval. The Sports Councils legal briefing makes clear that this is not how the sport exception in the Equality Act works.