Case update

Transgender discrimination and sport

In Haynes v The English Blackball Pool Association, the Canterbury County Court held that there was no gender reassignment discrimination where the pool association prevented transgender women from competing in its female competitions. This is the first decision dealing with transgender discrimination since the Supreme Court’s judgment in For Women Scotland (FWS) v The Scottish Ministers.

Background

Harriet Haynes is an English eight-ball pool player and a trans woman. She has a gender recognition certificate (GRC) under the Gender Reassignment Act 2004. The English Blackball Pool Federation (EBPF) is one of the two main organisations which organise pool competitions in England.

On 27 August 2023, the EBPF announced a change in its rules so that only people who were born female would be permitted to play in its female competitions and teams. Prior to the rule change, the EBPF allowed trans women to play in female competitions provided blood tests showed that their testosterone was below a certain level. The rule change prevented Ms Haynes from continuing to play for the EBPF Kent women’s A team.

Ms Haynes asserted that this exclusion was direct discrimination against her on the grounds of gender reassignment, in breach of the Equality Act 2010.

Decision

The Court held that there was no gender reassignment discrimination and the claim was dismissed, for the following reasons:

  • EBPF had treated Ms Haynes as a man, making her ineligible for the women’s competition (despite her holding a GRC). The Court held that this view was in accordance with the law as stated in the FWS case, where the Supreme Court held that ‘sex’ in the Equality Act 2010 refers to biological rather than certificated ‘sex’.

“…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. But the Defendants’ view is in accordance with the law as stated in the FWS case. Taking that view and acting on it cannot amount to unlawful discrimination on grounds of gender reassignment.”
(para. 80)

  • The Court held that Ms Haynes’ exclusion was a matter of sex discrimination, not gender reassignment discrimination. Ms Haynes brought a claim for gender reassignment discrimination only. As there was no gender reassignment discrimination, the claim failed at the first hurdle.

  • Ms Haynes argued that her position should be compared to that of a biological female, who would not be excluded from competition. However, the Court held that this comparison was incorrect – the correct comparator in this case was a biological male, who would also have been excluded from playing in female competitions.

Gender-affected activity:

The Court also held that pool is a “gender affected activity” – following considerable assessment of evidence from physics and engineering experts – on the basis that “lesser strength and reach put the average woman at a disadvantage when competing against the average man at English eight-ball pool” (para. 250). Therefore, having separate competitions for men and women was necessary to secure fair competition

“A gender-affected activity is a defined term. It depends on a determination of whether the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage as competitors in a particular sport when compared to average persons of the other sex.”
(para. 235 - FWS)

Key Takeaways for Sports Organisations

This is a noteworthy judgment, given that it is the first case dealing with transgender discrimination since the FWS case.

Sports organisations should note that excluding participants from competitions based on their biological sex may be justified if there is no reasonable alternative way of achieving fair competition. Furthermore, the Court’s conclusion that pool is a “gender affected activity” may have implications for other sports where it is less obvious that women’s average physical strength, stamina and/or physique will disadvantage them as competitors against average men.

Finally, sports organisations should continue to monitor the publication of updated guidance from the Equality and Human Rights Commission (EHRC) following the FWS case. The EHRC published interim guidance on the practical implications of the FWS case earlier this year, with updated guidance to follow.