Politicians must step in to protect sport in legal minefield of trans policy – Ed Warner
The ruck over transgender women participating in female sport is fiercely contested. Opinions are polarised, each side shouting in its own echo chamber.
Into my inbox and into the debate drops an email from a PR agent containing a legal opinion that is a reminder that this issue is nuanced. It reinforces my own view that the law is an ass – at least in one respect – and that politicians need to protect governing bodies from possible financial ruin in addressing its flaw.
Lawyers Kingsley Napley conclude that the RFU’s ban on trans women playing female rugby is contrary to Britain’s Equality Act 2010 and fails the human rights test.
It’s a timely intervention as earlier this year UK Athletics, to some derision, concluded that it could not implement a similar regulation for just that reason. The parlous state of UKA’s finances precluded it from running the risk of possible legal challenges from trans athletes who might be excluded from female competition if it imposed the ban it desired.
The nub of Kingsley Napley’s interpretation of the Equality Act is that, although male puberty tends to deliver physical advantages (in a sporting context), not all trans women are necessarily heavier, stronger and faster than rugby players they may compete against who were born female.
They argue that rugby inherently involves players with a diversity of sizes, that the sport has risks which participants understand and accept, and that its league structure effectively sorts players into the right levels for their abilities.
“The ban… is a disproportionate means of attempting to achieve the legitimate aim of ensuring fairness and safety within rugby,” they said, adding that it “is inconsistent with the RFU’s regulation of the wider sport.”
Following the lawyers’ logic, one might conclude that each trans player would have to be assessed on a case-by-case basis to determine whether they present a danger to their opponents. This would allow the rugby authorities to invoke the fair competition and safety exemption clause that exists in the Equality Act – but only to bar individual players.
That would obviously be unworkable, though. Kingsley Napley calls instead for a “more proportionate – and legally sound – approach”. Bizarrely, they cite the success of the Lionesses in football’s Euros in support of their argument, and quote the chair of a women’s rugby team that they happen to sponsor.
Leaving aside these diversions from the legal path, the only practical suggestion they have is to require evidence of a sustained reduction, through medical intervention, in a player’s testosterone levels.
This is the middle ground that is being pursued by World Athletics, among other sports bodies, and which discriminates (in opposite directions) against, on the one hand, DSD athletes such as Caster Semenya and, on the other, the generality of athletes born female.
A testosterone level limit seems to me no solution at all, simply a fudge that will produce sporadic, inflamed arguments in elite sports whenever trans athletes succeed on the field of play. Female sport won’t be destroyed, as many on one side of the argument claim.
But its survival wouldn’t make the testosterone test right. And what of grassroots sport – and contact sports such as rugby in particular? Even one severe injury from an avoidable physical mismatch would be one too many.
The answer lies in the hands of politicians. Time for a deep breath. Nicola Sturgeon’s sudden departure in the midst of the furore in Scotland about her gender recognition reform is a coincidental reminder of our lawmakers’ frequent inability to read the room.
Governing bodies adrift in the sea of legal confusion about gender and sporting competition need to align opinion within their ranks and lobby parliament forcefully for a tightening of the exclusion clause in the Equality Act.
They need it swiftly if they are minded to go down rugby’s route and risk the costs of attendant legal challenges. After all, most have few spare pennies to rub together and many are badly scarred by previous tangles with the law.
Least worst solution? Two competition categories: one for athletes born female and another that is open to all.
A nation of doggy paddlers
GB Wheelchair Rugby is one of the many signatories to a letter to the PM calling for grassroots sports facilities to receive more help in dealing with soaring energy bills. The cost of living crisis is right at the top on our agenda in our work to help our member clubs.
My only consolation is that we are not swimming. Pool closures during Covid have hollowed out the sport. One swim charity tells me participant numbers are down by as much as 60 per cent. Turning down the boilers to save money is hardly going to entice the public back into the (chillier) water.
Do we want a nation that can swim? This isn’t about 50m pools and Olympic medals (although both are nice to have), just delivering basic life skills to our current generation of youngsters.
Saturday Night’s Alright (for Fighting)
Hard on the heels of last week’s column about globalisation and football club valuations comes a study from consultants Altman Solon comparing the music and sports industries.
It cites 74 per cent of survey respondents across 17 countries as interested in music versus 53 per cent with an interest in sport. Some detail jars – or is it just my headbanger bias? More people in the UK interested in Rafael Nadal than AC/DC. Really?
The thrust of Altman’s analysis is surely right, though. Sport has yet to fully exploit the market for cross-border fandom.
As I concluded last week, it’s the behemoth sporting brands that have the greatest opportunity, but there will be upstarts too who recognise the opening and steal a march on those hide-bound by a traditional, domestic focus.
Let it shine!
Great initiative from Sussex CCC to fire up interest in county red ball cricket: free tickets for the second day of its championship match against Durham on Good Friday.
Here’s to sun and a full house! Tickets available here.
Ed Warner is chair of GB Wheelchair Rugby and writes at sportinc.substack.com