On March 31, 2023, UK Athletics, the national governing body for Olympic athletics in the United Kingdom (U.K.), issued a principle statement in which it prohibited transgender women who underwent puberty as a male from competing in the female category of sports. The updated policy applies the recently updated World Athletics Eligibility Regulations for Transgender Athletes to competitions in the U.K. licensed by UK Athletics or any of the Home Country Athletic Federations (HCAF). As a result, from March 31, transgender women who have undergone puberty as a male will be prohibited from entering female sporting events undertaken under a license granted from UK Athletics or the HCAF. Transitional arrangements do not extend the prohibition to school events, other than Home Country National School championships, Ulster Schools championships, and events where athletes can qualify for these championships.
Background to the March 31 Principle Statement
Following the new policy for transgender athletes from World Athletics published in February 2023, UK Athletics published a statement that it could not issue a policy prohibiting transgender female athletes from entering into the female category of sports as this would be contrary to the Gender Recognition Act 2004 and the Equality Act 2010. It called for Parliament to introduce legislation to amend the law so that it could update its policy. Specifically, UK Athletics stated that section 9 of the Gender Recognition Act 2004, which provides for the recognition of an individual’s gender on a gender certificate, could not “be read as impliedly subject to restrictions or limitations contained in the [Equality Act 2010 (EA 2010)] unless that intention is made clear in the EA 2010 (which it is not).” UK Athletics noted this approach was consistent with a recent opinion from the Court of Session in Scotland, which stated a transgender woman with a gender recognition certificate can legally be defined as a woman with regard to the Equality Act 2010.
In response to UK Athletics’ statement, the Equality and Human Rights Commission released its own statement, criticizing UK Athletics for publishing “inaccurate advice.” The statement reads, in part:
We are concerned that UK Athletics’ interpretation of the ‘sporting exemption’, set out in section 195 of the Equality Act is inaccurate. We have particular concerns about the interpretation of how that provision interacts with the Gender Recognition Act 2004. Their interpretation is at odds with our position that [transgender individuals] can be lawfully excluded under the ‘sporting exemption’ in the Equality Act for reasons of fair and safe competition.
The Equality and Human Rights Commission noted that section 195(1) of the Equality Act provides a general exemption that enables sporting organizations to discriminate on grounds of sex for sporting activities where it would be affected by gender. Specifically, section 195(3) provides:
A gender-affected activity 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.
Section 195(2) of the Equality Act provides that discrimination on the grounds of gender reassignment is also permitted where necessary to secure fair competition or the safety of competitors. The UK Equality and Human Rights Commission concluded that “[i]t is therefore likely to be lawful for a sporting body or organization to adopt a trans-exclusive policy in relation to gender-based sporting competition where they can evidence that it is necessary to do so to secure fair competition or the safety of competitors.”
As a result of the statement from the Equality and Human Rights Commission, and further consultation with relevant bodies, UK Athletics published the new principle statement, replacing the Eligibility for Competition: Transgender and Female Classification Regulations.
In issuing the principle statement, UK Athletics noted that “competitive fairness cannot be reconciled with self-identification into the female category in gender-affected sport.” It declined to adopt a case-by-case basis. This reflects the position of World Athletics, which noted that the female athletic category was created to enable the inclusion of women in athletics, and that this could not occur fairly without the creation of a separate female category owing to the physical advantages men have that is attributable to their biological sex. World Athletics noted it has “prioritised fairness”:
The substantial sex difference in sports performance that emerges from puberty onwards means that the only way to achieve the objectives set out above is to maintain separate classifications (competition categories) for male and female athletes. That difference is due to the physical advantages conferred on male athletes by the testes producing much higher levels of circulating testosterone than ovaries produce from puberty onwards in female athletes.
UK Athletics states it remains committed to working with its Transgender Project Group and HCAF “to develop a Transgender Eligibility Policy for use in the United Kingdom.” World Athletics has also established a 12-month working group to consider the inclusion of transgender athletes in sport and notes it “will be guided in this by the science around physical performance and male advantage which will inevitably develop over the coming years. As more evidence becomes available, we will review our position, but we believe the integrity of the female category in athletics is paramount.”
Clare Feikert-Ahalt, Law Library of Congress
May 19, 2023
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