The Equality and Human Rights Commission has taken the unprecedented step of criticising UK Athletics for its “inaccurate” interpretation of the law after UKA announced plans for a new transgender policy.
The EHRC’s intervention came hours after UKA said it wanted to ban transgender women from female events on fairness grounds – but it would be too “risky” to do so unless the government changes the law.
However the EHRC, the body responsible for promoting and upholding equality and human rights ideals and laws across England, Scotland and Wales, said that it had told UKA that it was wrong, and that such a ban was justified, beforehand.
It said it had made clear that section 195 of the 2010 Equality Act allows sports to restrict competition in the female category on safety and fairness grounds, a position government sources also reiterated.
“We reached out to UK Athletics and offered to discuss the legal advice underpinning their statement,” the EHRC said. “We are disappointed that they have chosen to publicise their inaccurate advice and we would urge all organisations to consult our website which explains equality law and how it relates to these issues.”
The dispute began when UKA said it wanted the women’s category to be reserved “for competitors who were female at birth, so that they can continue to compete fairly” – with everyone else in a new “open” category, which would replace the current male one.
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Such a path has already been taken by British Triathlon, the Rugby Football Union and Rugby Football League without any legal challenges. However, the UKA chair, Ian Beattie, said his organisation was fearful of making such a change having taken legal advice regarding the Gender Recognition Act of 2004.
“It states that people with gender recognition certificates have to be treated as female for all purposes,” he said. “And there’s not an exemption for that for sporting purposes.”
“If we don’t get a legal change, it will be very difficult for us to go ahead with this policy,” he said. “The risks to the organisation would be too high.”
However government sources said they were puzzled by UKA’s position, given the more recent Equality Act 2010 clearly permits restrictions on the participation of transgender people in gender-affected sporting competitions in order to uphold fair and safe competition.
They also said the law was clear that the act also displaced the rule that a person with a Gender Recognition Certificate is to be treated as being of their acquired gender.
Government officials also noted that during a roundtable meeting with senior leaders of sports governing bodies in June 2022, they were asked to raise any concerns about potential legal challenges. None were forthcoming.
UKA’s position statement was issued in response to proposals from World Athletics, which would allow trans women and athletes with differences of sex development to compete in the elite female category if they lower their blood testosterone to below 2.5 nanomoles per litre for 24 months.
Several British female athletes, including Beth Dobbin, Emily Diamond, Amelia Strickler and Ellie Baker, have called the plan unfair. UKA agrees, citing the science showing that trans women “retain a testosterone/puberty advantage over biological females regardless of the reduction of post puberty testosterone levels”.
The campaign group Sex Matters said its legal advice concurred with the government and not UKA. “Sex Matters agrees with UKA that female-only sports are essential to provide safe and fair competition for women. But female-only competition is already lawful under the Equality Act.”
However the LGBTQ+ organisation Stonewall urged UKA to reconsider its position and to keep allowing trans women in female sport.
“The 2021 census data tells us that trans women make up 0.1% of the population in England and Wales. The trans population may be small, but they have every right to participate in sports and enjoy the many physical, mental and community benefits of sports,” said Robbie de Santos, Stonewall’s director of communications.
“It is vital that sports use robust evidence from the actual practice and experience of their sports, when seeking to update inclusion and participation policies.”