Where do sports stand after Supreme Court’s judgment on gender?
The future of trans women and men in sports is not the open and shut case that it might seem, argues lawyer Libby Payne, who has acted for Algerian boxer Imane Khelif.
The Supreme Court’s judgment in the For Women Scotland case has been met with significant commentary about the implications for a range of sectors, including sport.
However, while the decision seems simple at its core – as far as the Equality Act 2010 is concerned, references to men and women mean references to biological sex as recorded at birth, and not to sex recorded on a gender recognition certificate – the implications are heavily nuanced and there is still a lot that will remain unclear for some time.
It has always been permissible under the Equality Act to segregate sport into sex categories and also to restrict or exclude transgender participants from a particular sex category if necessary for fair competition or safety.
A number of sports adopted policies that allow, for example, trans women to compete in women’s sport with certain restrictions, such as reducing testosterone levels for a period of time, which were intended to address any fairness and safety concerns. Other sports took the approach of excluding trans women completely and many had no policy at all.
In recent years a number of sports were revisiting their existing policies and some were further restricting, or completely preventing the participation of, in particular, trans women in women’s sport, and specifically at elite level.
The judgment in the For Women Scotland case may therefore give confidence to those sports preferring to have sex categories based purely on sex recorded at birth as it will now likely be much harder for those policies to be challenged.
Sports will find way to include trans women
However, sports will inevitably want to look for a way to include everyone in a way that they are comfortable with and this will likely mean looking at options for allowing trans women to participate in certain women’s events, or genuinely mixed events – as opposed to men’s events that are relabelled “mixed” or “open”.
There could potentially be complaints from non-trans male competitors who are excluded from women’s events that also include trans women, arguing that this discriminates against them as such an event would now not be considered a single-sex event under the Equality Act.
Conversely, if a sport does not offer sufficient opportunity for women to compete in a single-sex category that does not include trans women, claims of discrimination could be made. Whether either type of claim is made or is successful remains to be seen – to date matters have largely avoided public litigation.
UK governing bodies need to consider the position of relevant international governing bodies. If the international policy does not permit the participation of trans women in the female category, then it is likely that any qualifying events will need to take the same approach, and indeed vice versa.
Clubs and governing bodies may also need to consider ancillary arrangements, such as changing rooms or accommodation provision when travelling. Policies or approaches to such arrangements should be considered independently of any policy on participation in the events themselves given the different issues that arise in this regard, in particular privacy for all those concerned.
It remains to be seen if, and how, the law will be applied following this decision. Clearly, though, it is an area where sports need to develop carefully considered policies, with the needs of all participants in mind.