The Equality and Human Rights Commission has condemned UK Athletics for its “wrong” interpretation of the rule after UKA announce plans for a new transgender policy.
The EHRC’s intervention comes an hour after UKA said it wants to ban transgender women from female affairs on fairgrounds – but it would be too “risky” unless the state changes the law.
However, the EHRC, the body accountable for promoting and upholding equality and human rights ideals and laws across England, Scotland, and Wales, said that it told UKA it stood wrong and that such a prohibition should explain forward.
It said it had created straightforward that section 195 of the 2010 Equality Act allows sports to determine the competition in the female category on safety and fairness grounds, a position governments source also repeated.
Reach out to UK Athletics and offer to discuss the legal advice underpinning their statement,” the EHRC said. We are disappointed that they have chosen to publicize their inaccurate advice. We urge all organizations to consult our website, which explains equality law and how it relates to these issues.
The debate began UKA said it wanted the women’s category to reserve “for competitors who are females at birth so that they can continue to contend fairly” – with everyone else in a new “open” category, which replaces the current male one.
British Triathlon, the Rugby Football Union, and the Rugby Football League have already taken such a path without legal challenges. However, the UKA chair, Ian Beattie, said his organization feared making such a change, having taken legal advice regarding the Gender Recognition Act of 2004.
“It states that people with gender recognition certificates treat 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 tough for us to go ahead with this policy,” he said. “The risks to the organization would be too high.”
However, government sources said they were puzzled by UKA’s position, given the more recent Equality Act 2010 permits restrictions on the participation of transgender people in gender-affected sporting matches 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 treats 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 asked to raise any concerns about potential legal challenges. None were forthcoming.
UKA’s position report is in response to proposals from World Athletics, which allow trans women and athletes with differences in sex development to compete in the elite female categories to lower their blood testosterone to below 2.5 nanomoles per liter for 24 months.
Several British female athletes, including Beth Dobbin, Emily Diamond, Amelia Strickler, and Ellie Baker, have called the plan unjust. 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, not UKA. “Sex Issues 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+ organization Stonewall urged UKA to reconsider its position and to keep allowing trans women in female sports.
The 2021 census data tells us that trans women make up 0.1% of the people in England and Wales. The trans population may be small, but they have every right to participate in sports and enjoy physical and mental activities. Society benefits from sports, said Robbie de Santos, Stonewall’s head of communications.
Sports must use robust evidence from the actual practice and experience of their marks when seeking to update inclusion and participation policies.
UK Athletics said it believes its desire to reserve the women’s category for female-born competitors is “challenging” because it is unlawful under current legislation.
The Equality and Human Right Commission took the unpriced stage of saying that current criteria allow for the changes described by UK Athletics.