British Cycling has posted a consultation on their proposed ‘Transgender and Non-Binary Participation Policy’.  We take a look at the parts of the Equality Act 2010 that are relevant to single-sex sporting events and highlight some of the issues we consider relevant to the consultation response.

The policy can be accessed here:

Responses to the consultation are invited by way of a survey available here:

Legal Definitions

The Equality Act 2010 defines a “transsexual” person as someone who “is 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”.  That person will then have the ‘protected characteristic’ of “gender reassignment”.  The term ‘transexual’ is now considered to be outdated and ‘transgender’ is typically used instead, but there is no legal difference in the terminology.  A person does not have to have had any form of surgery or hormonal treatment to acquire the protected characteristic of gender reassignment.

A person may have the protected characteristic of gender reassignment without their legal sex being changed from that which was recorded on their birth certificate at birth.  It is only where a person has a Gender Recognition Certificate (‘GRC’) issued under the Gender Recognition Act 2004 that their legal sex is officially changed.  Fewer than 5,000 of the estimated 600,000 transgender people in the UK have been issued with a GRC.  It is not necessary for a person to have had any form of surgery or hormonal treatment in order to obtain a GRC, but they will have had to evidence to the satisfaction of a specialist panel that they have lived as their acquired gender for at least two years and that they have a medical diagnosis of gender dysphoria. 

The Equality Act creates a starting point that discrimination on the grounds of sex is unlawful.  It then goes on to create exceptions to this starting point that make it lawful to discriminate in a variety of specified circumstances.  For our purposes the relevant exceptions are “gender-affected” sports (section 195) and single-sex services, which includes the provision of changing facilities and of recreational sporting activities (schedule 3 paragraphs 27 and 28).

Sport

Similar to section 19 of the Gender Recognition Act 2004, section 195(3) of the Equality Act 2010 defines a “gender-affected activity” as 

“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(1) provides that it is not unlawful to discriminate on the basis of sex in relation to a person’s participation in a “gender-affected activity”.  This means that it is permitted for an event organiser to hold separate competitions for male and female competitors or to run separate classes for either sex within the same sporting event.  

If a sport is deemed to be a “gender-affected activity” it is lawful to limit or refuse a transgender person entry to a particular competition if it is “necessary to do so to secure … (a) fair competition, or (b) the safety of competitors”.

This would mean that it would be lawful for British Cycling to refuse to admit all transwomen entry to a female-only competition if it was considered that the effects of going through a male puberty would create a residual biological advantage in a transwoman competitor (such as height, cardio-vascular capacity, muscle mass), notwithstanding that the competitor had demonstrated suppressed testosterone levels for the required 12 month period.   This would be lawful regardless of whether or not the transwoman holds a GRC.   A failure to take these factors into account could found a claim by female competitors for indirect discrimination.

It would be unlawful to prevent a transwoman from competing in an ‘open’ or men’s category competition.

Services

The exceptions in relation to the provision of services are relevant to non-competitive cycling events and to the provision of changing facilities at an event, whether competitive or not.

Non-Competitive Events

It is lawful to hold single-sex recreational events such as a ‘women only’ cycling event, whether as a one-off or as a regular program.  

Paragraph 27 of Schedule 3 provides that it is lawful to provide a single-sex service where 

“a joint service for persons of both sexes would be less effective, and the extent to which the service is required by persons of each sex makes it not reasonably practicable to provide separate services”, provided that it is a “proportionate means of achieving a legitimate aim”.  

Increasing women’s participation in cycling, and in sport generally, is a legitimate aim.  Given that there are a vast number of events that are open to men and/or people of both sexes, it is proportionate to hold women-only events to create a more female-friendly atmosphere. 

When the single-sex provisions are properly relied upon, it becomes lawful to exclude all male people from that event.  This would include transwomen who do not hold a GRC.

It can be lawful to exclude transwomen who do hold a GRC, but the justification for doing so has to be more finely balanced.   This is set out in paragraph 28 of Schedule 3.  Exclusion from the event would not be on the basis that the person’s legal sex is male, but rather, it would be on the basis that they are transgender.  Factors that are relevant to the proportionality exercise can include, for example, whether the event is aimed at women who share particular religious beliefs that limit socialisation with males outside their family.

A woman who felt unable to take part in a ‘women only’ event that was open to transwomen, because of her religious or other protected belief, or because she has previously been a victim of male violence could potentially bring a claim for indirect discrimination.

Alternatively, if a transwoman is excluded from an event for women only because she is perceived as male (notwithstanding her legal status), that is at least arguably sex discrimination (not gender reassignment discrimination), and permitted by paragraph 27 of schedule 3. 

Changing Facilities

The same provisions in schedule 3 paragraphs 27 and 28 apply to single-sex changing facilities, whether they are provided at a competitive or recreational event.  It is lawful to exclude males as a class from women’s toilets and changing facilities where “the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex.”

It may also be lawful to exclude a transwoman who holds a GRC from those spaces on grounds of gender reassignment where it is proportionate to do so.  Such considerations may be whether the facilities are communal as opposed to fully-enclosed cubicles.  The legitimate aim of encouraging more women into sport should be given particular weight.  The impact on women who have suffered sex-based violence and trauma from males must be counted.  The needs of all women to privacy, dignity and a sense of safety when changing is reasonable aim that cannot be achieved by compelling them to undress in close proximity to bodies readily perceived as male.

Alternatively, it may be more straightforward simply to characterise that exclusion as discrimination on grounds of perceived sex, which will always be lawful provided the initial conditions for the provision of a single-sex or separate-sex service are met.

Response to Consultation Questions

Q1: Definitions

·      Birth Gender: the gender that a person is assumed to be when they are born. This is usually based on the Sex they are assigned at birth. 

Comment:

This is not a term recognised in law.  It conflates the concept of ‘gender’ with the recording of a person’s sex at birth.  It adds nothing in terms of clarity to the definition of ‘sex’ below.  This definition should be removed. Where relevant the appropriate term would be “sex recorded at birth”.

·      Self-Identified Gender: the gender that the person identifies as, opposed to that which is assigned at birth, their ‘Birth Gender’. 

Comment:

      This is muddled:

–       Sex is recorded at birth, gender is not.

–       As above, ‘Birth Gender’ adds nothing to the definition of ‘sex’.

–       It conflates the situations of people who are transgender by virtue of ‘self-identification’ with those who have legally changed their sex upon the issuance of a GRC.  Their status’ are legally distinct.

Suggest amending to:

Self-Identified Gender: the gender that the person identifies as, opposed to the sex recorded on their birth certificate.

·      Sex: a person’s biological and physical characteristics, defined usually as either ‘male’ or ‘female’ and including indeterminate Sex. 

Comment:

‘Indeterminate sex’ is an inappropriate term. People with chromosomal anomalies that result in Differences of Sexual Development (‘DSD’) are still recognised as being either male or female.

To properly recognise people who have been issued with a Gender Recognition Certificate, suggest amending to:

Sex: a person’s biological and physical characteristics, defined usually as either ‘male’ or ‘female’, or their ‘legal sex’ as recorded in their Gender Recognition Certificate.

·      Transgender: a person whose Gender Identity is different from their physical Sex at birth. Those people who, as defined by the Equality Act 2010, share the protected characteristic of gender reassignment and are described as transsexual people under the legislation. 

Comment:

This definition is broader than the protected characteristic of ‘gender reassignment’ in the Equality Act.  The Act requires that a person is “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”.  Merely identifying as being of a different gender from one’s birth sex is not sufficient to bring a person under the definition of this protected characteristic.  Given that this would form the basis for deciding whether an individual is protected from discrimination and the application of single sex exceptions, this requires precision and therefore suggest amending to the legal definition:

Transgender: 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. Those people who, as defined by the Equality Act 2010, share the protected characteristic of gender reassignment and are described as transsexual people under the legislation.

Q2: Membership 

The following amendments are suggested:

·      “gender other than that assigned at birth” amend to “gender other than their sex as recorded at birth”

·      “for sporting purposes” amend to “for the purposes of British Cycling events and activities”

·      “obtain British Cycling Race Membership in their Self-Identified Gender” amend to “obtain British Cycling Race Membership in their Self-Identified Gender or legal sex as recognised by a Gender Recognition Certificate”.  

At present the policy does not expressly consider transgender people who have a GRC and who have already changed their legal sex; it appears as it only requires a person who does not have a GRC to present medical evidence that they meet the conditions set out in paragraph 5.  As there is no medical condition attached to the issuance of a GRC, the policy must make it clear that both self-identified transgender people and those who hold a GRC must satisfy the medical requirements.

·      “their membership shall be in their Self-Identified Gender rather than the Sex assigned at birth” amend to “their membership shall be in their Self-Identified Gender or reassigned Gender pursuant to a Gender Recognition Certificate rather than the Sex recorded at birth” 

Q 3: Recreational Activity 

This section of the policy, in conjunction with the provisions relating to membership in section 2 allows any male person, even if he is not actually transgender, full and unfettered access to women only cycling events and to women’s toilets and changing rooms provided at those events.  All that is required is that he signs a declaration that for “sporting purposes”, he wishes to be treated as if he is female.  He does not have to show that he in any way ‘lives as a woman’ or even that he is actually transgender.

The policy fails to apply the single-sex exceptions as contained in schedule 3 of the Equality Act.  Failure to provide appropriate single-sex facilities would unlawfully discriminate against women who attend, or wish to attend an event.  It is also contrary to British Cycling’s stated aims of increasing the participation of women in the sport. 

Q4: Competition

This policy should be worded with greater clarity.  

In relation to licences to complete in the female category there is no specification of how the reduction of testosterone has to be evidenced.  Is it sufficient to produce a Medical attestation demonstrating that the required hormone levels were met 12 months prior to the date of application?  Must this also be evidenced at a date and shortly prior to application and if so, within what time?  Is evidence in the intervening period required?  How often must testosterone levels be monitored thereafter- is an annual test sufficient?

If a competitor is issued with a female race licence but then fails to evidence that they have kept their testosterone reduced to the correct level in the subsequent 12 months, what happens to any titles, prize money etc that they may win during that period?  

In relation to licences to complete in the male category there is no reference to the Therapeutic Use Exemption certificates that would be required in relation to a transman injecting testosterone.  

Q 4 Other Comment 

Public Sector Equality Duty

British Cycling is likely to be bound by the requirements of section 149 of the Equality Act 2010 – the Public Sector Equality Duty.  This applies to some private organisations if they carry out a “function of a public nature”.  British Cycling is funded in part by public funds, and exercises delegated powers from Sport England.  Its role as a governing body for the sport, including its role in the selection and management of national teams means that it is likely to be deemed meet this criteria.

It therefore has a duty: 

“in the exercise of its functions, have due regard to the need to—

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”

It is obliged to consciously direct its mind to these obligations and to evidence that it has analysed its policies to ensure compliance with the Equality Act.  This would involve taking proper consideration of the rights and views of people of all protected characteristics.  British Cycling should carry out an equality impact assessment, informed by a proper consultation with its members to assess the impact of this policy on people of all protected characteristics and particularly on women, including women of minority ethnicities and religions. 

Emma Stuart King