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Feminism: Sex and gender discussions

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Original poster

“UKA has today outlined its position relating to transgender participation in athletics in the UK.”

224 replies

Helleofabore · 03/02/2023 14:10

www.uka.org.uk/wp-content/uploads/2023/02/UKA-Trans-Position-Statement_FINAL-03.02.23.pdf

This is what Jon Pike said was coming.

OP posts:
maeveiscurious · 03/02/2023 21:58

This is biological reality.

No victory just returning to reality

BellaAmorosa · 03/02/2023 21:59

QuadsZilla · 03/02/2023 21:51

I have it on reasonable authority that legal action is exactly what is stalling the UCI and BC.

Legal action from whom?

PermanentTemporary · 03/02/2023 22:02

As far as I know Lauren Jeska is in a women's prison.

I have to say that when women's prisoners say 'we don't mind transwomen in prisons, just not the rapists and obvious jokers' - and before you flame me, if you look, many do say that - they might well mean people like Jeska. The crime was horrific and violent and Jeska looks to me an extremely fragile personality in several ways which I'm not qualified to say anything more about. Again, before I get jumped on, that doesn't mean that I believe either that Jeska's total dominance of English women's fell running for several years was fair, nor do I think Jeska should be in a women's prison. I can well imagine though why Jeska was placed there.

QuadsZilla · 03/02/2023 22:03

I don’t have details but looking at Ma Bridges Twitter tonight, I’d guess Emily Bridges. I could be reading that bit wrong though.

AuContraire · 03/02/2023 22:03

This is very smart by UK Athletics.

Forces the government to update the Equality Act to make it clear it's about biological sex.

I agree that EHRC saying a weak "likely to be" isn't good enough.

QuadsZilla · 03/02/2023 22:06

like I say, I could be wrong but the way it’s worded does suggest certain knowledge.

BellaAmorosa · 03/02/2023 22:10

AuContraire · 03/02/2023 22:03

This is very smart by UK Athletics.

Forces the government to update the Equality Act to make it clear it's about biological sex.

I agree that EHRC saying a weak "likely to be" isn't good enough.

I just read the "likely to be" as legalese - you can never say anything for definite. Also it will depend on how the actual policy is worded. The EHRC wouldn't be so annoyed at having been ignored by UK Athletics and would not have responded instantly to the publishing of the outline policy if they weren't confident of the legal position. They call the advice UKA are relying on "inaccurate", which seems quite strong to me.

ResisterRex · 03/02/2023 22:10

IANAL but it looks like they think the problem is more with the GRA, not the EQA because of the repeal of a section of the GRA and what the EQA replaced it with:

"10. There is a duty in s.9(1) of the GRA 2004 to treat those trans women with a Gender Recognition Certificate as female for all purposes. Although the GRA 2004 originally contained (in s.19) a wide exemption for the organisation of sporting events, that exemption was repealed with effect from 1 October 2010. At the same time, a ‘sporting exemption’ provision in s.195 of the EA 2010 was introduced.

  1. UK Athletics does not believe that the ‘sporting exemption’ in s.195 of the EA 2010 applies to the GRA 2004 and so, at present, we could not lawfully exclude trans women in possession of a Gender Recognition Certificate from the female category. That is because:

a. The wording of the exemption in s.195 of the EA 2010 refers consistently to “this Act” (see subsections (1), (5) and (7)) or to specific provisions of the EA 2010 (see subsection (2)), and so does not extend the exemption to the GRA 2004.
b. The GRA 2004 used to contain a bespoke sporting exemption, but Parliament repealed it. EA 2010 s.195 does not indicate any intention to alter the operation of s.9 GRA 2004. If that was the intention, subsection (1) could be expected to read “A person does not contravene this Act or the Gender Recognition Act 2004”. That would extend the exemption to s.9(3) GRA 2004. But s.195 of the EA 2010 does not do that"

The EHRC don't seem to be dealing with this. Do they? Am i missing it?

"Their interpretation is at odds with our position that Gender Recognition Certificate (GRC) holders can be lawfully excluded under the ‘sporting exemption’ in the Equality Act for reasons of fair and safe competition. We do not believe the For Women Scotland judgment altered this position.

Section 195 (1) creates a general exemption to enable sporting organisations to discriminate on grounds of sex in relation in sporting activity and provides that sports can be lawfully segregated where an activity is ‘affected by gender’. Gender affected activity is defined as follows:
“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) then additionally permits organisations to discriminate on grounds of gender reassignment where this is necessary to secure:
• Fair competition; or
• The safety of competitors
It is therefore likely to be lawful"
So "a general exemption to enable sporting organisations to discriminate on grounds of sex..." if your sex is now the opposite to which you were born, and you have a new birth certificate DOES put sports into a mess. Doesn't it? There is also no clear requirement to split by biological sex that I can see.

Compounding this, the EHRC say things like "we do not believe" and "likely to". Which I imagine may make some feel like the proverbial canary.

BellaAmorosa · 03/02/2023 22:15

@QuadsZilla
Aha, so female cyclist(s) taking legal action. Interesting.

ScrollingLeaves · 03/02/2023 22:17

This is the post I was referring to a few hours earlier, which has made me wonder whether there may be more difficulties untangling GRCs the EA and sex based exclusions than we had been hoping given what Lady Haldane found.

^Spero · 29/01/2023 23:16
It is going to be very difficult to 'sex' to its proper place and meaning and I think now cannot be achieved without new legislation. The Lady Haldane judgment confirmed what I had always thought - that the GRA changes your legal sex, unless the exceptions apply. Those exceptions have now been muddled and obfuscated over decades leaving everyone very confused about when they are allowed to insist on single biological sex spaces or providers.^

I suggest repeal the GRA and modify the Equality Act to make 'gender identity' no more than a protected belief. I.e. you are protected against harassment and discrimination but 'gender identity' cannot be an organising category in the way that sex is.

We will have to have some way of providing recognition of a 'legal sex' unless we leave the Council of Europe and the ECHR - the Goodwin judgment of 2002 was a recognition that the UK had failed to protect the rights of transexuals to be able to hide their birth sex on official documents etc.

So I would suggest a procedure to obtain a 'Certificate Changing Legal Sex' (remove all mentions to gender, its hopelessly poisoned now) which would enable a person to change a driving licence and passport. Birth certificates must remain unchanged but we could issue 'short form' birth certificates which didn't mention sex at all if people were upset by that.

Keep the gender dysporia diagnosis and 2 year reflection period - junk 'living as a woman' as no one knows what that means. That should hopefully weed out at least some of the malicious and the sexual predators.

Make sure that the EA sets out very clearly when biological sex trumps legal sex.

I have no idea if these proposals would work or be accepted by many/any. We should have been having these conversations since 2018 at the least. Hopefully we will start now.

AuContraire · 03/02/2023 22:20

ResisterRex · 03/02/2023 22:10

IANAL but it looks like they think the problem is more with the GRA, not the EQA because of the repeal of a section of the GRA and what the EQA replaced it with:

"10. There is a duty in s.9(1) of the GRA 2004 to treat those trans women with a Gender Recognition Certificate as female for all purposes. Although the GRA 2004 originally contained (in s.19) a wide exemption for the organisation of sporting events, that exemption was repealed with effect from 1 October 2010. At the same time, a ‘sporting exemption’ provision in s.195 of the EA 2010 was introduced.

  1. UK Athletics does not believe that the ‘sporting exemption’ in s.195 of the EA 2010 applies to the GRA 2004 and so, at present, we could not lawfully exclude trans women in possession of a Gender Recognition Certificate from the female category. That is because:

a. The wording of the exemption in s.195 of the EA 2010 refers consistently to “this Act” (see subsections (1), (5) and (7)) or to specific provisions of the EA 2010 (see subsection (2)), and so does not extend the exemption to the GRA 2004.
b. The GRA 2004 used to contain a bespoke sporting exemption, but Parliament repealed it. EA 2010 s.195 does not indicate any intention to alter the operation of s.9 GRA 2004. If that was the intention, subsection (1) could be expected to read “A person does not contravene this Act or the Gender Recognition Act 2004”. That would extend the exemption to s.9(3) GRA 2004. But s.195 of the EA 2010 does not do that"

The EHRC don't seem to be dealing with this. Do they? Am i missing it?

"Their interpretation is at odds with our position that Gender Recognition Certificate (GRC) holders can be lawfully excluded under the ‘sporting exemption’ in the Equality Act for reasons of fair and safe competition. We do not believe the For Women Scotland judgment altered this position.

Section 195 (1) creates a general exemption to enable sporting organisations to discriminate on grounds of sex in relation in sporting activity and provides that sports can be lawfully segregated where an activity is ‘affected by gender’. Gender affected activity is defined as follows:
“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) then additionally permits organisations to discriminate on grounds of gender reassignment where this is necessary to secure:
• Fair competition; or
• The safety of competitors
It is therefore likely to be lawful"
So "a general exemption to enable sporting organisations to discriminate on grounds of sex..." if your sex is now the opposite to which you were born, and you have a new birth certificate DOES put sports into a mess. Doesn't it? There is also no clear requirement to split by biological sex that I can see.

Compounding this, the EHRC say things like "we do not believe" and "likely to". Which I imagine may make some feel like the proverbial canary.

I agree.

Remember how difficult it was for World Athletics to get the CAS judgment that said Caster Semenya couldn't run with full testosterone in the 800m? That so nearly went the other way. "Likely to be" just isn't good enough. The rules need to be clearer. They need to be absolute.

We know there'll be trans lobby groups pushing this HARD through the courts.

hopefully Jolyon Maugham will bring the case

crazycatladyof6 · 03/02/2023 22:21

Fantastic

ResisterRex · 03/02/2023 22:33

ScrollingLeaves · 03/02/2023 22:17

This is the post I was referring to a few hours earlier, which has made me wonder whether there may be more difficulties untangling GRCs the EA and sex based exclusions than we had been hoping given what Lady Haldane found.

^Spero · 29/01/2023 23:16
It is going to be very difficult to 'sex' to its proper place and meaning and I think now cannot be achieved without new legislation. The Lady Haldane judgment confirmed what I had always thought - that the GRA changes your legal sex, unless the exceptions apply. Those exceptions have now been muddled and obfuscated over decades leaving everyone very confused about when they are allowed to insist on single biological sex spaces or providers.^

I suggest repeal the GRA and modify the Equality Act to make 'gender identity' no more than a protected belief. I.e. you are protected against harassment and discrimination but 'gender identity' cannot be an organising category in the way that sex is.

We will have to have some way of providing recognition of a 'legal sex' unless we leave the Council of Europe and the ECHR - the Goodwin judgment of 2002 was a recognition that the UK had failed to protect the rights of transexuals to be able to hide their birth sex on official documents etc.

So I would suggest a procedure to obtain a 'Certificate Changing Legal Sex' (remove all mentions to gender, its hopelessly poisoned now) which would enable a person to change a driving licence and passport. Birth certificates must remain unchanged but we could issue 'short form' birth certificates which didn't mention sex at all if people were upset by that.

Keep the gender dysporia diagnosis and 2 year reflection period - junk 'living as a woman' as no one knows what that means. That should hopefully weed out at least some of the malicious and the sexual predators.

Make sure that the EA sets out very clearly when biological sex trumps legal sex.

I have no idea if these proposals would work or be accepted by many/any. We should have been having these conversations since 2018 at the least. Hopefully we will start now.

This makes sense to me. And I agree about making belief in GI, a protected belief. I think it's telling no such push exists post-Forstater.

beastlyslumber · 03/02/2023 22:41

Helleofabore · 03/02/2023 14:13

the quick answer is:

include transgender women in an “open” category, which would replace the current male category and be open to athletes of all sexes; and

reserve the women’s category for competitors who were female at birth, so that they can continue to compete fairly.

Nice and clear

That is brilliant.

BinturongsSmellOfPopcorn · 04/02/2023 00:03

sports can be lawfully segregated where an activity is ‘affected by gender’. Gender affected activity is defined as follows:
“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”.

A clear illustration of why the current law - and guidance on the law - is not fit for purpose. This does not describe activities that are 'gender affected'; it describes ones that are sex affected.

duc748 · 04/02/2023 00:12

It's just shit drafting. How does this get through. Or, I suppose I should say, 'did'.

ScrollingLeaves · 04/02/2023 01:02

This does not describe activities that are 'gender affected'; it describes ones that are sex affected.

It’s that use as a U.S. euphemism that causes so much trouble.

They would have thought ‘sex affected’ might be misconstrued as something like having syphillis, or post coital tristesse.

OhHolyJesus · 04/02/2023 08:29

Good to see this in the Guardian this morning

“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.”

www.theguardian.com/sport/2023/feb/03/uk-athletics-trans-women-female-events-law-change

...And as that study from Joanna Harper has been reduced to a case study where is the robust evidence to come from, could it be that they use the common sense argument we have supported by science after all?

Sugarfree23 · 04/02/2023 09:20

OhHolyJesus · 03/02/2023 21:00

I was thinking the same @ditalini - I'm coming to this a bit late in the day, but thinking on this as I am now, rugby is clearly mad to have as mixed sex but something like dressage (where the horse is the performer) much less so I imagine. Tennis would be unfair to be mixed but not necessarily dangerous perhaps? I know the speed of serving differs but is the risk and result of getting hit by a hard hitting ball more of mixed sex? Cricket balls are lighter for women's cricket and there have been head injuries and even deaths by being hit I believe....It all needs to be weighed up, I suppose that's why the EHRC statement isn't definitive and says 'likely' as it depends on the sport and the policy applied and would need to be evidenced accordingly for it to be argued in court as 'lawful'.

I read it as applying to sport in general when referring to the exceptions and not just to athletics, even though that is who they are addressing in the statement.

I think it's a matter of who takes responsibility - do the sporting bodies push the government for clarification, or do they simply need reminding to operate within the existing laws? I have written to DCMS calling for clarification in the past but now see where clauses were already written into the EA to manage this, permission to exclude is already granted and legal (if evidenced) ...but if the sporting bodies aren't going to follow it, or need a tighter law in order to deflect accusations to create a blanket ban, then who's ball is the court in?

Most horse riding events are not segregated the sex of the rider, show jumping, dressage, cross country, horse racing.

I'm not a racing fan but I'd heard of fillys races, (young female horses) and have just gone down a wormhole. Yes they do also have colts (young male horse) races. At Royal Ascot the weights are listed with a 3 or 5lb allowance for mares and fillys depending on the race.
So they level they field that way.

OhHolyJesus · 04/02/2023 09:29

So they level they field that way.

Yes so a trans exclusive policy in horse related sport may prove difficult to defend as lawful as it is not evidenced as being unsafe or unfair.

The horse being the star of the show really, the sporting bodies manage it a different way. Should a horse identity out of its category that could be a different matter but we are not there...yet Smile

BellaAmorosa · 04/02/2023 11:38

This is still bothering me. The UKA seem very hung up on the implications of the Haldane judgment for the meaning of sex, but it doesn't matter that the people excluded are legally "female", because their exclusion would be based on gender reassignment, not on sex.
Section 195(1) permits the exclusion of men (on the ground of sex) from"gender-affected" sports because of the advantages given superior strength, speed, etc on average and additionally, section 195(2) permits exclusion on the ground of gender reassignment in order to secure fair competition and the safety of competitors. This covers the "females" (males in possession of a GRC) who are "female" by virtue of gender reassignment.
It seems a very powerful, clear and straightforward argument to me. And there are 17 peer-reviewed studies providing evidence that male advantage cannot be erased - which the UKA implicitly accept in their outline policy document.

Yes, it's perfectly possible that males with a GRC will sue, but they would be on shaky ground. They would have to show either there is no retained male advantage (already disproven) so that their exclusion to secure fair competition and safety is unwarranted, or that becoming legally female in itself erases male advantage, and thus exclusion is unwarranted. Laughable. Like claiming that because a company is a legal person, it can get fat or fall in love or catch COVID.
And UKA need to weigh up the cost of being sued for unfair discrimination by males with GRCs against the cost of being sued for sex discrimination by female athletes. Because that is their choice. They already have legal cover to protect the female category. However any legislative amendment is phrased, TRAs will sue if they have a mind to.

Original poster
Helleofabore · 04/02/2023 12:37

QuadsZilla · 03/02/2023 21:51

I have it on reasonable authority that legal action is exactly what is stalling the UCI and BC.

That is very concerning.

OP posts:
QuadsZilla · 04/02/2023 12:44

It depends on the question the court (if it ever gets to court) are asked: are they having to decide if their policies that restrict the eligibility of womens cycling are lawful? Or was EB treated unfairly?
I don’t know the answers to these questions.

The UCI have been challenged before with the Kirsten Worley case so I see why they are being timid.

That said, it doesn’t make it right and their reluctance to stand up for female riders stinks to high heaven.
I hope what is inferred from the tweets is correct and a current female U23 rider has legally challenged them is correct.

pattihews · 04/02/2023 12:58

The UKA has issued a model response there, based on science and research and not belief. Congratulations to everyone involved. Terf Island is leading the way back to sanity and showing the rest of the world how to do it. Sharron Davies and all the other sportswomen and men who have been working behind the scenes, this is your victory and I salute you.

Reading the legal commentaries and ideas with interest. Not a lawyer and can't get my head around all the implications, but enshrining GI as a protected belief that confers no special rights is a really useful way of separating it from sexuality, which is physically demonstrated and observable. Should make the severing of the LGB and the TQAI+++ much easier.

I know it feels at the moment as if the UK is a failing mess, but I'm thrilled by the way women have fought back here.

Sugarfree23 · 04/02/2023 15:56

I know it's one step at a time. But UKA are seeing that open & women's is the way forward. Is there any hope for the Olympics?

The Olympic committee/ federation should never have allowed transwomen to complete as women in the first place. Because if they'd stood firm every organisation below them would have too.