The judgment is well set out and thought through. The judge was obviously left scratching their head about the Claimant's submissions. There are some choice quotes emphasising the "have your cake and eat it" nature of the submissions.
"76 Thus far, it seems to be the Claimant’s stated position that (i) in view of FWS, the relevant
exclusion was a matter of sex discrimination and (ii) she had not pleaded sex discrimination. I would
have thought it followed that the claim must be dismissed. However, the Amended Further
Submissions then argued that it should succeed:
“To assert that the discrimination experienced by the Claimant is actually sex discrimination,
and not gender reassignment discrimination, is incorrect. To adopt such an approach would
render the protected characteristic of gender reassignment worthless and there is nothing in
the FWS decision supporting such a position.” (paragraph 13)
77 It seems to me that this passage contradicts what was said in paragraph 9 of the same
submissions, as quoted above. Nor can I see how it is reconcilable with FWS. If (in accordance with
FWS) I accept that the Defendants have excluded the Claimant from women’s competitions because
she is a biological male, then it cannot be said that they have instead, or additionally, excluded her
because of gender reassignment. Indeed, it is more accurate to say that they have excluded her
despite her gender reassignment."
"80 Attempting to engage with these submissions as best I can, I would say that the Defendants have
treated the Claimant as a man (and therefore ineligible for the women’s competition) because they
have not accepted that her gender reassignment certificate requires her to be treated as a woman
for the purposes of the EA 2010. The Claimant is aggrieved by that." 🙄🤔😄