The Equality Act 2010 protects everyone against direct and indirect discrimination on the basis of nine characteristics and requires public authorities to advance equality for people with these protected characteristics. One of the characteristics is ‘sex’ (not gender) and another is ‘gender reassignment’. The protected characteristic of sex refers to men (male of any age) or women (female of any age). People with the protected characteristic of gender reassignment are defined as ‘a person proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”. This broad definition covers anyone who self-identifies as transgender but does not change their legal sex classification. (Someone born male who self-identifies as a women is still legally male). Transgender people may also go through a process outlined in the Gender Recognition Act 2004 to change their legal sex by obtaining a Gender Recognition Certificate (GRC). However, they may still be lawfully excluded from women’s sport for reasons of fairness of competition and/or safety of competitors as outlined in both the Equality Act and the Gender Recognition Act.
It is important to note that people who have disorders of sexual development (DSD), sometimes referred to as ‘intersex’ conditions, should not be confused with those with the protected characteristic of gender reassignment. DSD conditions relate to abnormalities regarding biological sex not gender reassignment and require separate consideration.
Single-sex sport
Sport is specifically addressed by the Equality Act 2010 and the Gender Recognition Act 2004 because of the biological differences between the female and male sexes. Most sports organise both recreational and competitive sport for adults in single-sex settings, which is compliant with both these Acts for the following reasons:
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To eliminate indirect discrimination which occurs if people of one sex are put at a particular disadvantage when compared with people of the other sex in a mixed-sex setting.
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Because most sports are ‘gender-affected’. The use of gender here is conflated with biological sex as the definition of a ‘gender-affected’ activity stated in Equality Act 2010 is ‘a sport, game or other activity of a competitive nature in circumstances 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 as competitors in events involving the activity. A similar definition is stated in the Gender Recognition Act 2004.
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Because people with the protected characteristic of gender reassignment can be lawfully excluded from single-sex activities even if they have changed their legal sex by obtaining a Gender Recognition Certificate ‘if it is necessary to do so to secure in relation to the activity— (a) fair competition, or (b) the safety of competitors.’
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Because girls and women as a sex are under-represented in sport and single-sex sport is essential to ensure they have an equal and fair opportunity to participate and compete.
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Because public bodies under the ‘public sector equality duty’ must also have due regard to ‘advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it’ and ‘encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low’.
This means that:
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Any ‘gender-affected’ sport operating single-sex activities of a competitive nature for girls and women, by definition, does so for the purposes of upholding fair competition and/or the safety of competitors.
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In ‘gender-affected activities’ transmen with or without a GRC are eligible to compete in female sport on the grounds of biological sex even if their legal sex is male, unless they have been taking cross-sex hormones.
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In ‘gender-affected activities’ transwomen with or without a GRC are not eligible to compete in female sport, unless it is possible to show that their ‘physical strength, stamina or physique’ does not confer an advantage.
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To include biological males within ‘gender-affected’ single-sex female categories would make sport less safe and less fair for women, and, in some cases, would preclude the involvement of women from certain religious backgrounds. It also discourages girls and women from participation and competition because of a perceived and real unfairness. It would, therefore, actively undermine the PSED, could not be objectively justified as a ‘proportionate means of achieving a legitimate aim’ and may be in breach of the Equality Act.
Exclusion as a proportionate means of achieving a legitimate aim
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Both the Equality Act 2010 and the Gender Recognition Act 2004 specifically and appropriately state that ‘gender-affected sports’ are determined by the difference between average persons of one sex category (females) as compared with another sex category (males). This is standard statistical analysis in order to determine a significant difference between two groups, classes or categories.
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Because the Equality Act protects against discrimination according to protected categories of characteristics not individual characteristics, the inclusion of transwomen in female sport should be considered as a category issue not on an individual case-by-case basis.
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To seek to move individuals from one biological sex category to the other on an individual case-by-case basis undermines the use of protected characteristics as a whole and contravenes robust research design. Girls’ and women’s single-sex categories must not become categories for women and individual biological men with male competitive advantage as this would undermine ‘fair competition’. Given men are not considered for inclusion in female sport on an individual ‘case-by-case’ basis neither can an individual ‘case-by-case’ approach be a fair or ‘proportionate means of achieving a legitimate aim’ in relation to transwomen.
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The proposal that in ‘gender-affected’ sports all transwomen as a category should be moved from the male to the female sex category if their ‘physical strength, stamina or physique’ does not confer a competitive advantage in any particular sport is not supported by the available research. If transwomen who are biologically male are considered a distinct category from other biological males for the purposes of sport, the standard for inclusion in female sport, whether on a recreational or competitive basis, must be based on there being no significant difference between average women and average transwomen for a range of anthropometric, physiological, biomechanical and performance variables which affect ‘physical strength, stamina or physique’ using appropriate statistical analysis. The available good quality research is minimal and shows in relation to the limited variables assessed, that statistically significant differences remain. Possibly the best experimental study available looks only at transsexual (not transgender) females and males but reports in relation to muscle mass that ‘after 1 year of androgen deprivation, mean muscle area in M–F had decreased significantly but remained significantly greater than in F–M before testosterone treatment’. Further, that ‘testosterone exposure during puberty leads ultimately to an average greater height in men of 12–15cm, larger bones and muscle mass, and greater strength’ and that ‘height was a strong predictor of muscle mass’. A small retrospective study involving a handful of transgender athletes was published in 2015 but contains significant methodological flaws.
Children
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The Equality Act states that ‘In considering whether a sport, game or other activity is gender-affected in relation to children, it is appropriate to take account of the age and stage of development of children who are likely to be competitors.’ In practice this means that once children start to go through puberty, from around 10 years of age onwards, most sports become ‘gender-affected’ and therefore should operate as single-sex activities for the sake of fairness and safety.
UK guidelines
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The UK’s Sports Council Equality Group produced, three sets of guidelines regarding the inclusion of transgender people in single-sex sport between 2013 and 2015: ‘Transsexual People and Competitive Sport Guidelines’, ‘Transsexual People: Eligibility to Compete in Domestic Competitions’, and ‘Transsexual People: Eligibility to Compete in International Competitions’ which acknowledge the legislative differences between the UK’s Equality Act and the widely influential IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism guidelines.
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Some of the sex-related differences justifying single-sex sport as permitted in the Equality Act are usefully referenced on pages 9-11 in the UK’s 2015 Sports Council Equality Group guidelines ‘Transsexual People: Eligibility to Compete in Domestic Competitions’ and include considerations of height and male puberty. Indeed the Guidelines state that the advantage that sex-related differences ‘is deemed to confer on those who have undergone male puberty, is central to the concerns about the inclusion of transsexual women, who have usually experienced the initial physical advantage of male development’.
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However, the guidelines then go on to recommend policy frameworks for non-contact and contact sports which rely primarily on individual hormone profiles and ‘case to case’ consideration rather than a systematic category review of the differences in ‘physical strength, stamina or physique’ between women and biologically male transwomen which have resulted in the single-sex sport in the first place. This may contravene the Equality Act in relation to the protected characteristic of sex.
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Further, recreational grass-roots sports clubs and amateur organisations cannot be expected to test circulating testosterone levels and this is an unrealistic burden to place on them.
International guidelines
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At present, where biological restrictions exist on the participation in female sport of people with the protected characteristic of ‘gender reassignment’, the only variable usually considered at international level is the hormone profile, or more specifically circulating testosterone levels as outlined in the 2015 ‘IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism’. This does not fulfil the criteria of fair competition and/or the safety of competitors as outlined in the Equality Act for the following reasons:
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It conflates people who have Disorders of Sexual Development with those with the protected characteristic of gender reassignment whereas these two population groups are totally distinct and need completely different consideration.
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It states clearly that ‘the overriding sporting objective is and remains the guarantee of fair competition’ and that ‘restrictions on participation are appropriate to the extent that they are necessary and proportionate to the achievement of that objective’; however, it appears that many international sports organisations interpret these ‘guidelines’ which ‘should be taken into account’, as rules regarding testosterone which are adopted wholesale.
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It is done on an individual ‘case-by-case’ basis rather than by research evidencing no significant difference between the categories of women and transwomen for testosterone.
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The circulating testosterone levels quoted are 10 times higher than mean testosterone levels for women.
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Testosterone is far from the only anthropometric, physiological, biomechanical and performance variable affecting ‘physical strength, stamina or physique’ which needs to be evidenced as being not significantly different between women and transwomen.
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Consideration needs to be given to the anthropometric, physiological, biomechanical and performance variables which persist as a result of having gone through male puberty, such as height.
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Consideration must be given to the research on muscle memory which shows that following past training ‘residual myonuclei’ allow more and faster growth when muscles are retrained — suggesting that we can “bank” muscle growth potential in our teens’.
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There is a notable exception to the widespread repackaging of the IOC guidelines as rules and the recent USA Powerlifting Transgender Participation Policy states in relation to male puberty that ‘significant advantages are had, including but not limited to increased body and muscle mass, bone density, bone structure, and connective tissue’. Further, ‘these advantages are not eliminated by reduction of serum androgens such as testosterone.’ This is an example of good practice and an acknowledgement of the range of variables which confer competitive advantage on the male sex.
Conclusions
Compliance with the Equality Act 2010 and the Gender Recognition Act 2004 requires that ‘gender- affected’ sports are organised in single-sex categories based on the protected characteristic of ‘sex’. People whose biological sex is male with the protected characteristic of ‘gender reassignment’ can be lawfully excluded from female single-sex activities even if they have changed their legal sex by obtaining a Gender Recognition Certificate ‘if it is necessary to do so to secure in relation to the activity— (a) fair competition, or (b) the safety of competitors’. This applies to sports 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’. Reducing testosterone in males is not sufficient to eliminate male performance advantage in relation to ‘physical strength, stamina or physique’. Further, given men are not considered for inclusion in female sport on an individual ‘case-by-case’ basis neither can an individual ‘case-by-case’ approach be fair or justified in relation to the category of transwomen. Including individual transwomen in female sport undermines the protected characteristic of sex, disadvantages all girls and women and, therefore, indirectly discriminates against them as a category. Therefore, this cannot be considered ‘a proportionate way of meeting a legitimate end’ and is not objectively justified.
Consequently, alternative proposals for the participation of transgender people in ‘gender-affected’ sports need to be considered. One alternative is to convert the male category to ‘open entry’ to include males, transmen who may be taking testosterone, and transwomen who retain a male competitive advantage having gone through male puberty and because of muscle memory, regardless of circulating testosterone levels. In addition this removes the pressure for biological males who identify as women to undergo hormonal and surgical intervention prior to puberty which may render them infertile and which the vast majority of the transgender population do not wish to undertake.
Finally, this ensures compliance with the Equality Act in relation to the protected characteristic of sex and is objectively justified in order to safeguard meaningful sports participation and competition. Single-sex sport categories in ‘gender-affected’ sports mean that girls and women can be confident of fair play and a level playing field which is at the very heart of sport.
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