Female-only sport: what does the law say?
The Gender Recognition Act 2004 was explicit that males who change their sex legally to female could be excluded from female sport. This clarity seems to have been lost. Sports governing bodies are dragging their heels, even though common sense and public opinion is fully behind them.
We have found that once they’ve worked through the evidence, and realised there is no fair way to allow trans-identifying males into female categories, fear of being sued is usually the last hurdle. The statement by UK Athletics on 3 February says exactly this.
The Equality and Human Rights Commission, the government body charged with ensuring compliance with the Equality Act, issued a statement in response to UK Athletics on the same day, saying that the law was already clear.
“We are concerned that UK Athletics’ interpretation of the “sporting exemption” set out in section 195 of the Equality Act 2010 is inaccurate, in particular the interpretation of how that provision interacts with the Gender Recognition Act 2004. Their interpretation is at odds with our position that Gender Recognition Certificate (GRC) holders can be lawfully excluded under the ‘sporting exemption’ in the Equality Act for reasons of fair and safe competition. We do not believe the For Women Scotland judgment altered this position.”
What does the law say about female-only sport?
The Sex Discrimination Act of 1975 (SDA) made an exception for single-sex sport, section 44 saying:
“Nothing in Parts II to IV shall, in relation to any sport, game or other activity of a competitive nature where the physical strength, stamina or physique of the average woman puts her at a disadvantage to the average man, render unlawful any act related to the participation of a person as a competitor in events involving that activity which are confined to competitors of one sex.”
When that act was amended in 1999 to address discrimination on the basis of gender reassignment, the sport exception was not affected, because those with gender reassignment remained their birth sex. How a person presented or lived their life was not considered relevant in sport.
UK Athletics say that they’ve been told it may not be lawful to exclude a male who has legally changed his sex through the process allowed in the Gender Recognition Act. Fewer than 4000 males of any age have done this in the UK since the Act was enacted in 2004. At that time, there was a clear statement in the GRA saying that males who became legally female could be excluded from female sport.
Section 19 of the Gender Recognition Act
When the Equality Act was developed six years later, this section of the GRA was substituted by the statement in section 195 referring first to sex (from the SDA) and then to gender reassignment, which covers those with a GRC and those without who may be in a process to get one. It is normal that laws are updated in this way so that there is no duplication. The EA replaced the SDA entirely. The explanatory note for section 195 says, “This section replaces similar provisions in previous legislation.”
Section 195 of the Equality Act 2010
It’s clear that this new s195 is intended to consolidate s44 of the SDA and s19 in the GRA, with a slight improvement, replacing “gender” with “sex” in clause 3 (formerly clause 4 in the GRA).
UK Athletics are hesitating over a tiny subgroup of trans-identifying males
A male who self-identifies as a woman is still legally male. In section 195, he can be excluded from female sport for this reason, without any justification. This means that the vast majority of males who are currently being admitted into women’s and girls’ sport can be lawfully excluded, just because the sport is gender-affected. Those with the protected characteristic of gender reassignment can also be excluded if it is necessary for fairness or safety. In one reading of the law, this means that a person born male with a GRC saying he is now legally female can also be excluded because although their sex legally is female, they are also covered in the Equality Act through the protected characteristic of gender reassignment. Thus clause 2 of s195 can be applied.
Legal advice given to UK Athletics seems to be based on the belief that this person’s legal sex is what counts, and not their gender reassignment. The EHRC has said this is not the case. Their statement says “We do not believe the For Women Scotland judgment altered this position.” This is the recent case in which the judge, Lady Haldane, said:
“In this context, which is the meaning of sex for the purposes of the 2010 Act, “sex” is not limited to biological or birth sex, but includes those in possession of a GRC obtained in accordance with the 2004 Act stating their acquired gender, and thus their sex.” (para 53)
But she went on to say:
“Such a conclusion does not offend against, or give rise to any conflict with, legislation where it is clear that “sex” means biological sex. Mr O’Neill referred to the example of the Forensic Medical Services (Victims of Sexual Offences) 32 (Scotland) Act 2021 where references to the sex of the forensic medical examiner can only mean, read fairly, that a victim should have access to an examiner of the same biological sex as themselves. I agree. There are no doubt many other such examples… A rigid approach in this context is neither mandated by the language of either statute nor consistent with their respective aims and purposes.”
Since s195 of the Equality Act is clearly the replication of s19 of the Gender Recognition Act, it is appropriate to conclude that sex means biological sex, and that males with a GRC making them legally female can be excluded. This has been stated explicitly by the EHRC, though it is yet to be tested in court. For now, a few sports bodies are racing confidently to a female-at-birth category, but many are hanging back in a most unsporting way. Are they misinterpreting the law, or just waiting to see if anyone gets sued? Either way, they are failing in their fundamental duty to provide fair and safe sport for all who play.
Thanks to Audrey Ludwig, a specialist discrimination lawyer, for her input to this article. It has also been reviewed by a sports law expert.
Download and share our column on this issue published in the New Law Journal, April 2023
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