Competitive sport – gender reassignment
13.73 Any sex-based rules or arrangements relating to participation in a gender-
affected activity (read paragraph 13.65) should be applied on the basis of
biological sex. Therefore, trans people should not be included in single-sex or
separate-sex competitions for the sex with which they identify. They should
also not be treated as that sex for the purposes of any other sex-based rules
or arrangements that relate to participation. The law on the exception for
sex discrimination in relation to gender-affected activities in section 195,
paragraph 1 is not settled (read paragraph 13.66). However, it is unlikely to
permit rules or arrangements that treat trans people as the sex with which
they identify, and participants or prospective participants may bring claims of
direct or indirect sex discrimination about such rules or arrangements.
Example
13.74 An athletics club chooses to organise a competitive running event that includes women and trans women. Running is a gender-affected activity. A woman who participates may be able to bring a claim for indirect sex discrimination due to the provider’s decision to include trans women placing her at a particular disadvantage. Men who are excluded from the event may also be able to bring a claim for direct discrimination based on their exclusion. This is because the exception for sex discrimination in section 195, paragraph 1 may not apply if the club chooses to include trans women and exclude men.
13.75 In addition, it may be lawful to exclude some trans people or treat them
differently from other members of their own sex in relation to participation
in a gender-affected activity, when necessary for reasons of safety or fair
competition. If it is not necessary for these reasons, it is likely to be unlawful
to exclude trans people from participating in the same way as members of
their own sex.
13.76 Consequently, if a person is organising single-sex or separate-sex events
for men and women, or other events with sex-based rules in relation to
participation, in a gender-affected activity, they should consider their approach
to trans competitors’ access to the service.
13.77 Direct gender reassignment discrimination can occur if a policy or decision to restrict participation of trans people is made on the grounds of gender reassignment. This would be the case, for example, if a trans man is excluded from a women’s event because of the protected characteristic of gender reassignment. Read Chapter 2 for more information on the meaning of gender reassignment.
13.78 Indirect gender reassignment discrimination can occur if a provision, criterion or practice puts trans people (including the individual trans person concerned) at a particular disadvantage compared to people who are not trans and it cannot be justified. This might be the case, for example, if a rule that excludes people who have received certain hormone treatment is more likely to result in the exclusion of trans people than others, unless that rule can be justified. If such a rule is necessary for reasons of safety or fair competition, it is likely to be justified.
13.79 In addition, in the context of a gender-affected activity, the Act provides
an exception to a claim of gender reassignment discrimination if a person
restricts participation of a trans person and can show it is necessary to do
so for reasons of fair competition or the safety of competitors (section 195,
paragraph 2).
13.80 This exception applies to service providers and public authorities, but not to associations covered by the Act who organise competitive sporting activities
solely for members and their guests. However, associations may still adopt
general rules which prevent people from participating in a sporting activity,
for example because they have received certain hormone treatment or have
hormone levels exceeding a set limit, if this is justified for reasons of safety or
fair competition.
Example
13.81 A boxing gym runs a boxing competition for women. A trans man who
has undergone treatment with testosterone wishes to compete. The gym
declines his request because they are concerned that the treatment has had
the effect of increasing his muscle mass and strength. This is likely to be
lawful if the gym can demonstrate that there would be a genuine health and
safety risk and / or impact on fair competition if the trans man were allowed
to join the competition.
13.82 The combined effect of the exceptions relating to sex and gender
reassignment under subsections 195, paragraphs 1 and 2 of the Act
may impose significant limitations on the ability of some trans people to
participate in some gender-affected activities. If the exceptions have been
properly applied, this will not be unlawful under the Act. However, this result
could constitute unlawful indirect gender reassignment discrimination unless
the overall arrangements for participation are a proportionate means of
achieving a legitimate aim. Organisers should therefore consider whether
there are additional alternative arrangements that could be made to enable
trans people to participate in the activity in question. This might include, for
example, having mixed-sex categories in addition to separate-sex categories,
or having a category in a gender-affected team activity with specified numbers
of men and women on each team, which would enable trans people to
participate as part of the specified number of members of their own sex (read
paragraphs 13.66 and 13.73).
13.83 Given the physiological differences between men and women, and the
potential impact of treatment that trans people may receive as part of the
process of transition, it will often be necessary for organisations to develop
general policies to guide and inform their decision making. Policies should be
supported by clear reasoning and an evidence base. They will often wish to
draw upon guidance from sporting authorities. Relevant factors may include:
-the extent to which there are competitive advantages arising from
sex-based physiological factors, such as physical strength, stamina
or physique
-whether such physiological factors give rise to safety risk factors, such
as those arising from physical contact between men and women
-whether medical or other interventions that trans people may have
received as part of their transition process, such as hormone treatment,
may affect fairness and / or safety
-whether there are additional or alternative arrangements that could be
made to enable trans people to participate
-whether an activity is primarily competitive, or competitive but with a
significant social and recreational purpose and whether it is a mass
participation event
(TLDR I reckon they wanted this example I have bolded for parkrun)